If you've been outside at all this week, there's a good chance you've noticed plenty of people (adults, not just children!) wandering around while staring down at their phones. Indeed, the new Pokémon Go craze has turned neighborhoods around the world into scenes from a zombie apocalypse movie. Sure, it seems like fun, but it's risky to walk the streets without watching where you're going! (Plenty of Pokémon Go-related injuries have already been reported.) After all, if something were to happen to you, who would take control of your precious Pokémon collection?! Of course, we kid...but the truth is that there are many other forms of what we call "digital assets" that you should plan for.
First, recognize that digital asset planning is not all about money. In fact, most of your digital assets are probably worth zero to nothing. While some digital assets do have value and may be transferrable, like domains or digital artwork or music that you have created, your Facebook, e-mail, Twitter, and LinkedIn accounts probably have no pecuniary value. These accounts, however, do have tremendous personal value. Do you want your executor to have access to all of your email communications? Do you want your Facebook account to be “memorialized” so that it remains for everyone to see? Do you want all of those family pictures stored on your computer to be deleted, or do you want them copied and delivered to your loved ones? These are important questions to answer, and your estate planning documents can be drafted to reflect your preferences.
Second, understand what we mean when we talk about “Digital Assets.” It’s really a loose phrase we use to describe all of your electronically stored information (for example, your Word Documents) and your online accounts. Online accounts include your bank accounts, social media accounts, gaming accounts, and online bill pay accounts. It is important to document the existence of all of these accounts. Not doing so could cost your Estate. For example, if your Executor is unaware of sites to which you subscribe for a fee, or is unaware of the bills that you pay automatically online, your Estate may be dishing out money unnecessarily after you are gone!
Third, know the framework within which you are working. Our recent iTunes blog post alerted you to the fact that you do not “own” your iTunes collection in the way you might have thought; your ownership is subject to your license with Apple Inc. and that agreement suggests that your collection is yours alone, forever and always. Licensing agreements control your use of most, if not all, online digital assets, and when planning for those accounts, it is important to understand what they say. They establish the framework within which you can plan.
The bottom line is that the law on digital asset planning is unsettled. Some states have legislated in this area, but most have not. What happens to your digital “stuff” may be affected by licensing agreements, other local laws, or court orders – but you make sure you have a voice in the matter by documenting your wishes in your estate plan. Call us at (301) 468-3220 or email us at firstname.lastname@example.org so that we can craft a solution that is right for you.
- Gary Altman, Esq. and Coryn Rosenstock