As If You Didn’t Have Enough Problems!
This article focuses on a new subject in a very old branch of the law – wills and trusts. You have a wealth of information on your computer(s) and on the Web, and your “digital estate” has begun to raise a number of new issues. Issues might include deciding whether and how to notify audience and friends of a death, tracking down financial accounts and determining how to shut down a Web site. Therefore, planning for digital assets is becoming part of good estate and succession planning.
As you move more of your activities – financial, social, work, leisure, creative – to the Internet, the questions about what happens to your online presence and how you can best prepare to handle that, demand your attention.
Here are some questions to be considered both by a client and by his or her attorney:
What would happen to an e-mail account? Who could access e-mail messages? Were there online financial or other accounts?
A key issue is passwords. In simplest terms, how can you log on to someone’s computer to do anything if you don’t have the password? And once you logged on, there will be a different set of passwords for Blogs, Facebook accounts, Twitter accounts, e-mail accounts, photos on Flickr, documents in Google Docs and videos on YouTube. Online bank and investment accounts, online medical information and subscriptions of all kinds, online shopping accounts that might hold credit card information, subscriptions and memberships all have passwords. You might have a Web site, or be a discussion leader for a discussion group. It’s difficult to know how and where your survivors would start. They will likely be overwhelmed.
Most of us keep important papers, necessary information and valuable assets in safe places., revealed to a few trusted people. Making arrangements for digital assets can be more difficult.
Identifying the Problem
Take a moment to do this mental exercise: Can you quickly and easily find all the valuable documents and files on your computer(s)? Or are they scattered among many folders, several computers, flash drives and backup CDs, DVDs or tapes? How easy will it be for someone to sit down at your computer and find everything they need, especially if it’s a struggle for you to do so?
Preparing a written outline works against every recommendation for good computer and Internet security. Security experts want you to create strong passwords, to use different ones for different accounts, and to change them frequently. How many times have you heard or read that you should never, ever write down passwords? Think about it. If you do a great job on security, you all but guarantee no one can get easy access to your digital world in the event of your death or disability.
And, looking ahead, the next generation of security devices will create even more problems: What if you use a thumbprint scanner or other biometric device for access to your computer? What happens when you die?
Similarly, it is not a great idea for security reasons to create directories, folders or documents on your computer that are named “Passwords,” “Important Financial Stuff” or “Account Information” in case someone breaks into or steals your computer.
A Simple Plan to Manage Your Digital Estate
There is no foolproof plan for your digital assets and accounts, BUT I want to recommend a simple plan that you can start on today and then revisit from time to time.
Make an Inventory
Hardware. Create a list of your hardware with a summary overview of what is on it. Many people have at least one laptop and one or more desktop computers. Many people keep copies of vital information on their work computers. Where do you back up information? You might have many USB flash drives, USB hard drives, backup CDs or DVDs. There might be important pictures still on digital cameras and even information on cell phones, PDAs, iPods or other devices.
Software. Do you use Quicken or another financial program? What income tax preparation programs do you use? Do you create spreadsheets or Word or WordPerfect documents with important financial information? If you blog, is there a program that someone would need to use to post news to your blog?
File structures. Your inventory should sketch out the main folders and places where you keep personal, financial and personal files and documents. You might have important collections of family photos or videos or work in progress.
Online presence. Create a list of your Web site(s), blog(s), Facebook and other social media accounts, online backup sites, online sites (sometimes called “clouds”) where you store documents, photos or other files, and listservs, groups or other sites to which you belong.
Online accounts. Amazon, AbeBooks and other shopping sites make it easy for you to create accounts and include credit card information. You might also have online access to bank and investment accounts. In fact, in many cases, you might no longer be receiving paper statements for accounts. If you don’t identify these accounts, it will be difficult for your successors to even know that they exist because there will be no paper trail. Also, make a list of all the e-mail accounts you have and use.
Work information. You may have access to client sites, collaboration sites, online document repositories or other information that no one else knows about. In addition, you might have access to software, online tools or online databases that someone taking over your work will need to have. You might have important network passwords, backup media or other digital assets the existence or value of which is not realized until they are gone.
You should gather and collect as much information as you can for your inventory. You can work on organizing and prioritizing later.
Identify Appropriate Help
In estate plans, we typically name a surviving spouse or adult child, as a personal representative or trustee. That person might be the worst possible choice for dealing with your digital assets. Give serious thought to who should be looking after your digital assets if you become disabled or die, and give thought to naming them in your will, trust, or a power of attorney, or clearly identifying them as “go to” people for your executor, trustee or spouse. Imagine that you have died or are become disabled: Who do you want to turn on your computer to find out and deal with what’s there? Let them know that and let others know that. This might be the IT person in your office or a child might be just the one you want going through your digital world (even one you might not want making financial decisions).
Provide for Access
While we are all cautioned never to write down passwords and PIN numbers, the simple fact is that, if we don’t do it, and keep them where they can be found when needed, no one will be able to access your computers and accounts. Good security means that your passwords are changed regularly. It’s still useful to keep a list of passwords somewhere that’s easy to get to, so that you can be constantly updating the list.
Notifications. You may have Facebook “friends,” LinkedIn “connections,” Twitter “followers” and others you communicate with on a regular basis. If we want those people notified, of your death, provide instructions so that can happen.
“Do Not Delete” items. People now routinely digitize all kinds of important document, photos and videos. For example, you might have scanned a historical family tree, family pictures or family videos, If you intend that they be passed on, make sure that they are identified and not lost when a hard drive is deleted.
“Bequeathed” information. As mentioned previously, you might be keeping family, business or other information that should be made available to specific people or even donated to a university or other archive.
Give Appropriate Authority
Look into ways that your online accounts might permit you to designate others to act on your behalf or get added to your accounts. Especially in the cases of people who are not married, finding ways to give exactly the people the authority you want to manage your digital affairs will be very important.
I hope I’ve made you aware of the new estate planning problems created by new technology. Unless you are and choose to remain a technological Luddite, the questions about what happens to your online presence and digital accounts demand your attention. If we can help, please contact one of the estate planning attorneys at DiMonte & Lizak, LLC