The Life Transition Blog

Even those of you who have resisted the digital revolution are likely to be surprised by the wide reach of your personal digital fingerprints. If you have an e-mail address, you own a digital belonging. If you author a blog or save photographs to an online site, you own more digital belongings. If you have a Facebook account you’re in the game. Today, it’s pretty hard not to participate in the digital world. What happens to these things when you die? This is an emerging and rapidly evolving area of the law. In his book The World Is Flat, Thomas Friedman tells the story of Justin Ellsworth, a U.S. Marine killed in Iraq. Justin's parents wanted access to his e-mail account to enable them to learn more about his life. After the e-mail provider refused, Justin’s parents had to go to court to gain access to his personal e-mail account.

More and more, attorneys who are advising clients about estate planning are recommending consideration of wishes for distribution or destruction of digital belongings along with planning for tangible property. In fact, some people are now naming “Digital Executors” in addition to standard “Executors” or Personal Representatives. Your digital executor need not be the same person as the one you name to handle the other matters associated with settling your estate.

So what is a digital belonging? And when is that belonging a potential asset to you and your estate? The easiest way to think about this is to make a distinction between digital belongings and digital assets. With tangible property, there is “stuff” and then there is “valuable stuff”. In your estate plan, you have probably given some thought to the disposition of the “valuable stuff” and lump the rest together as “my other personal property.” The valuables may have monetary or sentimental value, or both. The same is true for your digital stuff. For example, if you have written a travel blog for the past five years, that might be something that can be packaged and published electronically or in print and sold to a willing buyer. Or if you have created a killer website or a high demand domain name it is likely that someone would acquire it from your estate. Alternatively, all the digital photos you took of Grandma Elizabeth might have only sentimental value. However, if Grandma was a famous actress, those photos might have monetary value as well. In short, your digital property is an asset when it has value to someone else, whether that value is monetary or sentimental.

In addition to the obvious digital belongings like e-mail accounts, blogs, and photos or writing stored online, don’t forget about other digital assets such as social media accounts, your financial records, audio, video or e-reader libraries, and so on. And then there are your frequent flyer accounts, memberships, and anywhere else that you log in to or store information.

There is an emerging industry seeking to help you organize your digital life. When evaluating such services, pay close attention to their approach to security and privacy as well as to their history of any breach to same. Whether you are considering a service to help you store your digital assets “in the cloud” or one that simply helps you catalog your login and password information, do be a carefully consumer. While there is something appealing to having an online repository of your important information, passwords and login credentials there is also an obvious risk to this. Instead, you might want to consider capturing and including your digital life in an off-line format such as your family transition plan. In this way, the information is available to your digital executor but you greatly reduce the risk of losing this valuable information to others.