DIGITAL ASSETS:  PASSING ON YOUR ELECTRONIC PHOTOS, FILES, ACCOUNTS, AND DATA

When a loved one passes away, probably the furthest thoughts from your mind at that time are:  How do I access and preserve their digital assets of value? And, what are their passwords?

First, let’s define “digital assets.”  A strict definition from Wikipedia is “anything that exists in a binary format and comes with the right to use. … Digital assets are classified as images, multimedia and textual content files.”  In plain English that means computer and other electronic files that you have the right to use (such as your photos, videos, Word Documents, music in .mp3 or other digital format, etc., whether on local computers, smart phones, tablets, or hosted “in the cloud” by other company’s servers which are connected to the internet).  However, when we’re talking about estate planning, we need to expand the strict definition to include not only the files, but the accounts you have access to, such as email, Paypal, Facebook, YouTube, your own domain names and websites, online stores and marketing referral businesses, and digital currencies such as Bitcoin.

Nowadays, more and more of our lives are intertwined with technology.  A 2011 survey by the McAfee AntiVirus software company revealed that in the U.S. people value their digital assets at about $55,000, on average.  You might not think our accounts are worth very much in monetary or financial terms, but there is also sentimental value attached to many digital assets (such as photos that don’t exist in print, but are only on your devices).

Can you use a power of attorney, a trust document, probate or conservatorship court proceedings to allow a fiduciary or agent to access, manage, and deal with your digital assets the same way that they can with your non-digital assets?  This is a new area of law which is still emerging and needs quite a bit of reform as technology is evolving more quickly than the legislators can seem to keep up with.  In general, there has not been much law that gives legal authority to your authorized representative or fiduciary.  However, on June 30, 2016, the Hawaii State Legislature just passed, and Governor Ige just signed into law, Senate Bill 2298 as the “Hawaii Uniform Fiduciary Access to Digital Assets Act”.

This new law allows your agent acting under your power of attorney or will, a conservator or personal representative appointed by the court, or a trustee of a trust to force a custodian to release your digital assets to them.  Despite the passing of this law, there are still some wrinkles that haven’t been ironed out.  For example, under Federal Law, sharing a password without proper authorization can be considered a crime under the Computer Fraud and Abuse Act.  Although the case that decided this was about an employee sharing her username and password with a former employee to give him access to work databases, the principle of law that was decided was that an unauthorized sharing of a username and password can be criminal activity subject to imprisonment!  The grey area is now: What happens if a digital asset custodian prohibits the sharing of username and password, or logging into of an account by anyone other than the original user who signed up for it?  Under the custodian’s “Terms of Use” or “Privacy Policy” it might prohibit such activity. In this case, even though the custodian might have to reveal the information to the fiduciary under Hawaii State Law—it’s theoretically possible (though extremely unlikely in the case of personal and not business/company accounts) that once the fiduciary accesses the account, she could be prosecuted under Federal Law for violating the Computer Fraud and Abuse Act!

There are some best practices that you should consider implementing when preparing for a fiduciary to have access to your digital assets. Having a list of usernames and passwords (that isn’t saved on your password-protected computer—unless you subscribe to our service described below) can be really helpful.  In one case, a decedent left her iPad to her daughter, but she didn’t give her daughter the password. Because the daughter didn’t have access to the mother’s email account, Apple Computer company wouldn’t allow her to reset or access the password protected device—leaving her with a useless iPad.  Make sure that your estate planning attorney includes language in your power of attorney, will, and trust to allow for the access of your digital assets when you are incapacitated or pass away.  Also, consider keeping a paper written record of important usernames and passwords to access online-only financial and other accounts, which you can make available to your fiduciaries at the right time.

Our law firm provides a service where we will securely store just the username and password to access your local computer at home (or a password protected electronic document which we don’t have a copy of) so that you can keep all of your other usernames and passwords stored securely on your hard drive or on a thumb drive.  When you become incapacitated or pass away, your authorization to us becomes effective to release that information to your designated fiduciary.  Once they have the password to access your computer or your file, they can find all of your other important usernames and passwords on the document you keep on your computer, or in a password protected file on your thumb drive—perhaps in a safe or a safe deposit box.

Regardless of the mechanism you use to plan for this, it’s clear that it is important to do some planning to allow for the continuity of access to digital assets once you’ve passed on or are otherwise incapacitated.

 

OKURA & ASSOCIATES, 2016

Honolulu Office  (808) 593-8885

Hilo Office          (808) 935-3344

 

Ethan R. Okura received his Doctor of Jurisprudence Degree from Columbia University in 2002.  He specializes in Estate Planning to protect assets from nursing home costs, probate, estate taxes, and creditors.

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This column is for general information only.  The facts of your case may change the advice given.  Do not rely on the information in this column without consulting an estate planning specialist.

 

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