What is real? This is one of the themes in Ridley Scott’s fantastic and influential movie, Blade Runner. In the movie, Harrison Ford’s character, Decker, is tasked with finding and “retiring” Replicants. These replicants are essentially manufactured robots who look like humans, but aren’t. Or are they? Decker has to figure out whether or not the “person” is a replicant, which is done through a series of questions. I don’t want to spoil the movie, so I won’t go into more detail; but if you haven’t seen it, you need to. However, the point is that the movie explores what is real and what is not, and posits that things that we do not think of as real turn out to be more real than we thought. A great case in point are Digital Assets.
WHAT ARE DIGITAL ASSETS?
So what is a digital asset, and are they real? Technology in our world has made tremendous advances. I was recently at the Air and Space Museum in Washington, DC, and I was struck that the time between the Wright brother’s first flight and the moon landing was a mere 65 years. The same thing has happened with digital technology, and it does not seem to be slowing down. More and more of our lives are taking place online, in the cloud, in a virtual reality, etc. Developing alongside this are assets that inhabit this new world.
A good definition of digital asset is “an asset that can be owned and has value, but has no physical presence.” The ownership of value is what makes it an asset, not the tangibility of the object or thing.
So let’s apply this definition and get a list of assets.
Documents, Pictures, MP3 files, etc. are all digital assets that are fairly easy to understand. A word document you create on your computer is yours. The computer itself is not digital property; but the documents you create on it are. Also, the pictures you take on your smartphone are digital assets. Whether or not you put them on your computer, they still are digital assets (plus, we live in such an integrated digital environment, that they generally will be on your computer as soon as you snap the pic). Your passwords are digital assets. Essentially, everything on your devices (computer, smartphone, or tablet) is a digital asset.
ONLINE ACCOUNTS
Another important category of digital assets you may have are your online accounts. This is a very broad category and so it might be helpful to break it down further.
Social Media Accounts
Your social media accounts are digital assets. Consider your various social media accounts and all the data on them–this may be the pictures, videos, or other data (posts, notes, etc) on your account on Facebook, Instagram, Twitter, Foursquare, Snapchat, LinkedIn, etc.–the list could go on for a long time. These social media accounts are your property, and access to them will not necessarily be given to another party. In fact, it is often very hard to get access to them even if you own them and have lost the login information. For almost everyone, these accounts have relational and sentimental value, and for some people, these accounts can also be of financial significance. Many people run businesses out of their Facebook or Instagram accounts that represent a significant value.
Email Accounts
Your Gmail or Yahoo account is your digital property. These email accounts have formed the backbone of our online life, and the data on them can have huge effects on our day to day life. There is often valuable information on these accounts such as:
- Banking information
- Access to utilities accounts
- Access to social media accounts
- Access to your Amazon account
- Sentimental notes
Other Online Accounts
A plethora of other online accounts exist as well. Netflix, Amazon, online banking, online investment or retirement, cloud storage, gaming, business accounts, etc. Once you start evaluating these accounts, the number can run up precipitously. Also, worth mentioning, but your crypto-currency would be a digital asset as well.
Websites
Websites or domain names owned by you are also digital assets. These can often have immense value, particularly when connected to a business.
Trademarks
Another, often overlooked digital asset can be trademarks possessed by you or your business. Like a business website, these assets can hold a copious amount of value, and should definitely make the digital asset master list.
WHAT ARE THE RULES AND LAWS CONTROLLING DIGITAL ASSETS?
I think we have an idea now of what digital assets are. I encourage you to start keeping a list of the different assets you have floating around cyberspace. Start a master list on Evernote that you can continue to add to, and consider that all the data in your Evernote account should also go on that list.
What laws govern these assets? Let me introduce you to the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). This model rule was drafted by a lot of smart attorneys and law professors, and has been adopted by many states, including Idaho and Washington. Digital assets are also controlled by the Terms of Service Agreement (TOSA) between the owner of the asset and a provider (such as Google).
Terms of Service Agreements
A term of service agreement is the agreement that pops up when you sign up for an account or buy music through iTunes, etc. We all scroll to the bottom without reading (myself included) and click “I Agree”. These terms of service will often address what happens after the death of the user, and it generally is for the benefit of the company, unfortunately. You need to be very careful, since there have been clauses in these agreements that state that the account will be deleted upon death of the owner. Even though it can be daunting, I strongly encourage you to familiarize yourself with what you are agreeing to.
The practical issue that these TOSAs raise is that when a person dies, their attorney or their personal representative named in their will may have a hard time accessing these accounts. This is for good reason, and that reason is privacy. Posthumous identity theft is actually a very real thing, as real as the digital assets that will be stolen. The barriers raised by TOSAs are addressed by RUFADAA.
RUFADAA
This law authorizes the fiduciary to be able to access the digital asset/account, but it does not transfer ownership, which is still controlled by the Terms of Service Agreement. Additionally, the access needs to be affirmatively granted to the fiduciary in an applicable document (will, POA, trust, etc.). It is a “hot power” that has to be granted specifically. The rules do not allow the fiduciary to access the digital assets simply by virtue of his or her being the fiduciary of the owner, it has to be given affirmatively to the fiduciary. One issue this raises is that most estate planning documents are out of date and do not address this. Those estate plans need to be updated immediately.
WHAT SHOULD YOU DO?
This is a lot of information–what steps do you need to take in your own life to make sure your digital assets can be accessed and if applicable, protected when you die?
- Review your existing Digital Assets. You should begin by making a list of all of your existing digital assets. As I am sure you have figured out, this list may be a bit longer than you might have originally thought. Do it anyway, and add to it as you think of more things.
- Examine the Terms of Service Agreements. TOSAs need to be examined more closely. You should know what will happen at your death, whether or not the account will be immediately terminated, and how the information can be accessed by the fiduciary. It is worth noting that Google has begun a program where you can designate what happens to your account and information if you have not accessed it for a period of time. Facebook also allows you to designate a “Legacy Contact” to manage your account in a limited capacity after you die. Take a few minutes to update your accounts with this information–you are essentially making a will for these specific accounts.
- Make a plan for managing these assets. Businesses can be hit hard with even brief delays (paying payroll taxes and reporting to Dept of Labor for instance). Access to the accounts can be impossible if the accounts are not properly identified and access not provided.
- Update your Estate Plan immediately to affirmatively grant digital access to your personal representative. I cannot stress this enough. Your digital fiduciary can only access many of your assets if he or she has a specifically granted power by the owner. This is done through the will, trust, and power of attorney. Many companies will not grant access or give out the information from the account, unless there is a properly granted power under the state law governing digital assets. You can contact me here to get started making sure your plan is up to date.
Digital assets present their own set of unique estate planning issues to the owner. There is often a lot of value tied up in these assets, so make a plan to manage that value. By making a plan now, you can save your loved ones a lot of stress, save your business lost revenue, and preserve the digital assets that matter to you.
Eifert Law Firm
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