Take Stock of Your Digital Data

Words like digital executor, digital legacy, digital assets and digital heir are creeping into our vocabulary and into our communal psyche. One might assume that your digital data includes your on line ID’s, subscription accounts, pass codes, emails, stock accounts, as well as your collection of iTunes and your entire social media persona. One of the reasons that the topic has not come to the forefront sooner, perhaps, is that the “Baby Boomers” have had less of a digital footprint than later generations. Whatever the reason, there is fast approaching the time when we will face the legal issues of what happens to our digital data, our digital legacy, our digital inheritance after our death. As one person commented, a few more generations and they will not know what “paper” is!

In years gone by, inheritance involved “tangible” property, the “immoveable” things such as a house or land, as well as collections of heirloom objects and objects of art.
Later, the inheritance of “intangibles” such as bank accounts, shareholder accounts, and copyrights became paramount.

The Sept. 9, 2102 article in USA Today Tech by Roger Yu titled – Digital Inheritance Remains Murky..is a vastly interesting article discussing, among other digital data, the legal aspects of the “inheritance” of iTunes. One can see that the “murkiness” of who actually owns digital data has not cleared much since 2012. If you have spare time, read the “agreement” of your Twitter, Facebook, iTunes and other on-line accounts to find out how much you “own” or do not “own”.

If one were to assign a digital executor…what can that person actually do with the deceased’s accounts? Well, that depends on whom you ask. Ask Twitter or Facebook, and they are likely to respond…not much.

Powers of the digital executor …Can a digital executor: ???

Delete documents/accounts/social media?
Transfer documents/accounts/social media?
Access photo albums – store, delete, print?
Access emails – (do you really want anyone else to read what you wrote one day about aggravating Aunt Alicia???
Manage documents/accounts/social media? (keeping them “alive” so to speak. This would include that blog that you have written for a few years).

Regarding your Digital Legacy – what and how much do you really want your family to know about your digital “escapades”?

One significant Question: Why should an email be treated differently than a paper letter that you have saved?
Another point that has been made is that the third party, i.e., the person the deceased has communicated with, has the right to privacy. By accessing the deceased’s accounts, particularly emails, the privacy of that third party is jeopardized. A hypothetical situation… If the deceased had communicated with someone else concerning an illegal activity, then that person is jeopardized when the “digital executor” finds out about the communication. Will the “digital executor” then have the legal/moral responsibility to report the communication/illegal activity to authorities?

Thus, we can see that the matter of digital inheritance is a complex issue. Interestingly, the topic of digital assets is more often seen in “techie” magazines than legal ones.

In August, 2014 the state of Delaware became first state to begin to grapple with the issue and give executors broad digital assets access. The decision is broader than previous state decisions. You can read more about the Delaware decision and the varying viewpoints in the lucid article by Cyrus Farivar (August 18, 2014) in Ars Technica on-line magazine. The Delaware Act is titled: Fiduciary Access to Digital Assets and Digital Accounts Act. According to the Ars article, “Earlier this year, the Uniform Law Commission, a non-profit group that lobbies to enact model legislations across all jurisdictions in the United States, adopted its Uniform Fiduciary Access to Digital Assets Act (UFADAA). Delaware is the first state to take the UFADAA (Uniform Fiduciary Access to Digital Assets Act) and turn it into a bona fide law.”

Social media providers have concerns with both the UFADDA and the Delaware law.

Will other states follow with their versions of digital inheritance? Apparently, Idaho, Nebraska and Indiana have limited versions of the law. I wait to be corrected on that point! Things change very rapidly in the digital world!

Some wise advice would be:

Take stock of all your digital data on a regular basis.
Keep accounts and password changes up- to- date.
Delete those accounts that are no longer relevant to you.
Try to delete emails that you might not want anyone else to read in the future. (Although we all hear that deleting data is more difficult than merely hitting the delete button!)
Keep a record of pass codes and passwords in a safe place and advise someone you trust about where they are kept.
If you are concerned about your digital legacy, keep appraised to changes in your state’s digital inheritance legislation.

And finally…give a thought to your “digital inheritance”. It is far broader than you might have believed.

Please read my disclaimer at the bottom of this page and also refer to my column “How I Can Help You”

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About Attorney Barbara Ann Dalvano

Attorney in Denver, Colorado with extensive practice experience in the areas of Estate Planning, Wills and Trusts, Business Succession Planning, Probate, Contract Law.

One response to “Take Stock of Your Digital Data”

  1. Attorney Barbara Ann Dalvano says :

    Reblogged this on Sticks and Mortar Blog and commented:

    Here is my original article about the importance of digital data

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