Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
What Your Will Should Say About Your Digital Assets
April 17, 2012
For those of you who have wills, it is my guess that virtually none of them reference digital assets. Until recently, lawyers weren't thinking about digital assets.
Our friend, attorney Deb Matthews, told us a horror story about a client whose husband had passed away without leaving behind his ID and password for their bank account. The bank would not grant his wife access and she had a devil of a time since her husband had gone paperless and was making online payments each month. She had no way of knowing when bills were due to pay them and she began racking up delinquent accounts as a result.
We've heard (many times) the problems with Facebook accounts when the owner dies. There have been parents desperate to know why their child committed suicide, wives who wanted to set up their deceased husband's page as a memorial and close relatives who wanted to take down the hate-filled postings of someone with a mental disorder who has died.
When we recently redid our own wills (a dismal task but usually good insurance of anything dreadful happening in the near future), we talked to Sam (Samantha) Musso, our own attorney. We all collaborated on some research and I am taking the unusual step of making this a very long blog post by including below my signature the language we came up with for our wills and Powers of Attorney.
I hope some of you will find this useful and thanks to Sam for her willingness to share her work. Pass the language along to anyone who may be interested – there isn't currently a lot out there on this subject.
http://twitter.com/sharonnelsonesq
POWERS OF ATTORNEY
To give the Agent power over digital assets:
“Digital Assets. My Agent shall have (i) the power to access, use, and control my digital devices, including but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, and any similar digital device which currently exists or may exist as technology develops for the purpose of accessing, modifying, deleting, controlling, or transferring my digital assets, and (ii) the power to access, modify, delete, control, and transfer my digital assets, including but not limited to, my emails received, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, banking accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts, and similar digital items which currently exist or may exist as technology develops, and (iii) the power to obtain, access, modify, delete, and control my passwords and other electronic credentials associated with my digital devices and digital assets described above.”
For greater emphasis to banks, include in the provision giving the Agent powers regarding financial accounts:
“….and to access, modify, delete, control, and transfer my digital financial accounts.”
WILLS
To give the Executor power to access/manage digital assets (or when using the alternate clause, to engage another named person to do so):
“My Executor shall have the power to access, handle, distribute, and dispose of my digital assets, and the power to obtain, access, modify, delete, and control my passwords and other electronic credentials associated with my digital devices and digital assets. [ALTERNATIVE: I authorize my Executor to engage to assist in accessing, handling, distributing, and disposing of my digital assets.] If I have prepared a memorandum, which may be altered by me from time to time, with instructions concerning my digital assets and their access, handling, distribution, and disposition, I direct my Executor and beneficiaries to follow my instructions as outlined in that memorandum. “Digital assets” includes the following:
(1) Files stored on my digital devices, including but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, and any similar digital device which currently exists or may exist as technology develops; and
(2) Emails received, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, banking accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts, and similar digital items which currently exist or may exist as technology develops, regardless of the ownership of the physical device upon which the digital item is stored.”
SAMPLE DIGITAL ASSETS MEMORANDUM
In order to assist your Agent and/or Executor, please use this space to give instructions and necessary information regarding your digital assets, including usernames, passwords, PINs, etc. (or the location of such information if stored separately) and instructions on how they should be handled.
DIGITAL DEVICES (computers, tablets, smartphones, etc.):
Item Access Information Instructions
__________ _______________________ ___________________
__________ _______________________ ___________________
EMAIL ACCOUNTS:
Account Access Information Instructions
__________ _______________________ ___________________
__________ _______________________ ___________________
SOCIAL NETWORKING (Facebook, Twitter, etc.):
Account Access Information Instructions
__________ _______________________ ___________________
__________ _______________________ ___________________
ONLINE BANKING/FINANCIAL ACCOUNTS:
Account Access Information Instructions
__________ _________
______________ �
160; ___________________
__________ _______________________ ___________________
ONLINE MEDIA ACCOUNTS (music, photos, etc.):
Account Access Information Instructions
__________ _______________________ ___________________
__________ _______________________ ___________________
OTHER DIGITAL ASSETS:
Item/Account Access Information Instructions
__________ _______________________ ___________________
__________ _______________________ ___________________
Listen to the Podcast
