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Death & Dying. Law & Technology.

What is a Digital Asset?

Megan Yip

Do you own your Flickr photos? What about the ones you have on Instagram? Can you pass them on to someone when you die? Should you be able to pass on the license of Photoshop you purchased? Access to your Instagram account? I think you should be able to, but right now companies and the law disagree (in very unclear ways).

HOW DO WE DEFINE A DIGITAL ASSET?

We define digital assets as: content, files, resources, or accounts that you have created, purchased, or primarily store in a digital format.

Some digital assets you OWN, some you LICENSE (access/accounts/software). Digital assets you own you can bequeath or pass on to others. Those you license may not be transferrable.2

But how did we get here? Does it match with what other frameworks (legal and otherwise) define digital assets as?

What is an “asset”?


Generally, an asset is “something of value.” But “thing” and “value” are subjective (aren’t most things?) and so this is where debate emerges, especially because we’re talking with lawyers. When dealing with estates, “asset” nearly entirely has to do with property (something ownable) that you want to share with your family or loved ones, or that is related to business or debts. Of course all these definitions are driven by the problem with “value”. Because our digital lives persist after our physical deaths, we want to acknowledge “asset” might also be associated with “benefits” or “advantages,” but that’s not the perspective from which we’ll be speaking.

WHAT ABOUT OWNERSHIP?

Are digital assets something you have paid for? These days, rarely. Most things online we license rather than purchase. Accounting principles provide for deciding on a case-by-case basis as to whether Software licenses are defined as an asset or an expense, for example. The author has Feelings about paying for things which one then cannot act as an owner of. But for the sake of narrowing our topic, a digital asset is one without DRM.

Our work has value, and we sometimes have ownership over what our work produces. All of these have value: copyrights on your photos, use of photos or created images, how you use a selling platform and if a family member could replicate that with knowledge they have from how your business works. Also, the emotional or monetary value of music tracks, of collections stored online, of your top-level-domain, of your written blogs, of your stored written works that have not been published yet – do they have value indicated in a contract, with a co-author, or through emotions? For creating an inventory of your own “assets,” the following steps might be of use3:

  1. Describe the item
  2. Consider its value
  3. Consider who needs access
  4. Consider legal solutions
  5. Consider tech solutions

While we appreciate value derived from emotional stakes, this post primarily focuses on ownableassets. I hope the reader will adapt these systems and suggestions for assets which fall outside these legal boundaries.

Ownable assets are a thing most estate plans deal with, and so the states in the US have generally thought about how to define assets, and having a federal system means most of those laws are pretty close to each other. Will it be similar for digital assets?

WHAT IS A “DIGITAL ASSET” UNDER MOST STATE LAWS?

There’s this really cool website called Uniform Laws.

The Uniform Law Commission provides states with non-partisan, well conceived, and well drafted legislation that brings clarity and stability to critical areas of state statutory law.

A bunch of states might want to adopt the same sort of law, and this group helps them do that. Then they adapt the law to their contexts, and the differences are tracked via this site. Be still my Open heart.

Many states who have considered legislation on digital assets are working towards adopting the uniform law called The Revised Uniform Fiduciary Access to Digital Assets Act (PDF) which defines ‘digital asset’ this way:

”Digital asset” means an electronic record in which an individual has a right or
interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.

Enough states, including California, have adopted this law for it to be the most popularly-accepted legal definition of “digital asset.”

There are some problems with this.

There are already well tested laws behind estate planning. Should we shift assets which fall into traditional categories (bank accounts, for instance) into these new digital-space laws (a brick-and-mortar bank with online assets), or should we differentiate instead between a “digital native” asset (my Simple account) and one which is not (my SFFCU account)?

What about things I’ve written, which are drafted on paper, typed up and stored on my hard drive, backed up to online storage (the “cloud”), and then printed back out?

What about if I hack into someone’s email (which I would totally never do) and print one email and then never access that email account again? Is the paper email I printed protected in any way? If I die at my computer printing things – why is the paper on my printer protected differently than the same emails in my email box?

This legal definition has left us with more complexity and ambiguity to navigate, rather than clarity. This is a big part of why we have crafted our own definition.

We’ll have an extra blog post later about the hearty people and organizations starting to explore the unknown edges of this space. I’m in over my head on this – most folk are – but if you’re interested, it should give you a feel for what the upcoming issues and changes might be.

Our definition

In short, the legal definition has left us with more questions than answers. So in the interest of defining space and moving on with the conversation, we’ve arrived at

Content, files, resources, or accounts that you have created, purchased, or primarily store in a digital format.

Some digital assets you OWN, some you LICENSE (access/accounts/software). Digital assets you own you can bequeath or pass on to others. Those you license may not be transferrable.

Closing

We do a lot of things online, so by not having a “digital asset plan” or “digital access to assets plan” we complicate things for our family and loved ones who have to clean up when we die – I outlined this problem here. You can start your digital asset plan with an inventory, regardless of if you share passwords. Most of the things in your inventory, such as bank accounts, likely won’t need to be treated any differently than they were before – you just need to be more thoughtful about communicating to people who will have to take care of you.

This article was a project with Networked Mortality. Thanks to Willow Brugh and Anna Graham for working out this page(s) long definition with me. 

In the Age of Access by Password, Are Post Death Asset Transfers Really THAT Important?

Megan Yip

Today many people access most of their accounts - bank accounts, credit card accounts, investment accounts, mortgage accounts - and more online via password access. Many professionals advise that in planning for incapacity or death, that folks should keep a list of passwords to share with their loved ones or trusted agents who will need to access these accounts and make financial decisions in case of incapacity or death.

I am uncomfortable with advising on sharing passwords for many reasons, but one of the most important reasons is that, seemingly as a result of simplifying digital asset estate planning down to ‘share your passwords’, I see a trend in people neglecting the post death transfers of ownership for these accounts.

 

Photo by Gam1983/iStock / Getty Images
Photo by Gam1983/iStock / Getty Images

This is what I see happening:

Someone who is grieving comes to me to get clarity on what they need to do given their loved one’s death - maybe a parent, child, or partner.

During my meeting with them, we review an inventory of what their family member owned or kept at the time of death.  I walk them through the various processes they need to follow to close accounts, transfer title of assets, dispose of things or pass them on.  People are pretty accepting of the fact that to transfer or clear title to real estate you follow the procedure of the county government; that ownership of vehicles need to be processed through the DMV. However, there is often disbelief or hesitance in following the advice that one needs to go through a formal procedure to transfer an account, be it credit card, bank or investment, when they have in their possession the “log-in” information to access that account online.

 

As an estate planner, you might assume that I advocate that post death transfers of ownership are important because they are my business. It is true, but generating business is not my concern.  

What I find upsetting is a trend that people are unable to defend their assets, when they only take over the password access to the account, instead of taking the time to legally transfer ownership of the asset.  

If my husband passes away and I just use his password to continue banking online the way he did while alive, without reporting his death to the bank, I might be ok for a while. It might even be a long while. However, when fraudulent transactions occur, or a credit card needs to be reported as lost or stolen; I will not have standing to make that claim. As the account is still owned by my deceased husband, he has standing to defend it. Though the financial institution’s customer service may work with me to get ownership at that point, it will be much harder than if I completed the transfer of ownership of the asset as close to time of death as possible. It’s worth noting also that I might not have standing to fight fraudulent charges if I wasn’t the owner of the account when they happened.

A post death transfer of asset, like a bank account, credit card or investment account involves some paperwork, usually submitting a death certificate, and maybe a phone call. I appreciate it’s not fun to call up strangers and talk about the death of a loved one, but it is an important part of protecting assets after someone passes away….. even if you have the password and can ‘just log-in’.  

If the account is co-owned and you are using your own log-in to access a bank account that has both your and your deceased loved one’s name on it, clearing title, or taking a deceased person’s name off of an account is also an important step.  Pretending to be a deceased person for financial gain is an age-old fraud. We have many laws and procedures in place for traditional assets to make it harder to assume the identity of a deceased person. When it comes to digital assets, clearing title to assets we access primarily online, or closing online accounts should not be overlooked as an important part of fraud prevention.  

 

Estate Planning - Questions Answered

Megan Yip

Welcome Jennifer Cowan to my blog. Enjoy her review of basic estate planning questions, and learn more about her work at the bottom of the article. 

Estate Planning Part I: Why Do You Need It?

When people find out that I am an Estate Planning attorney I sometimes hear why they don’t need one: “I’m going to spend it all before I die”; “I don’t have an estate”; “My kids will sort it out when I’m gone.” I’m here to tell you that you DO need an estate plan. And if you already have an estate plan in place, congratulations! Just skip to “Part II: What Happens Next?”

First, all of us have an estate, even if we don’t live in a gated mansion. We probably have some amount of assets, and we are likely to have items of sentimental value. Many people opt to keep that special item in the family or pass it to a close friend for whom it also has meaning. In the past I’ve done volunteer work for low income elderly clients. These clients are concerned about a beloved pet and making sure that the pet is provided for at their death. They also may have a treasured family item to pass to a relative. Both of these concerns can be addressed in a simple will.

An estate plan does more than just lay out who your assets go to. It provides for you if you become incapacitated. While no one likes to think about that happening, it is increasingly likely as life spans increase that a significant percentage of us will spend some time [legally] incapacitated: mentally unable to make medical or financial decisions for ourselves. An example of this is the loss of the ability to reason and manage financial affairs due to Alzheimer’s or vascular dementia. Any criteria for determining incapacity will be spelled out in your documents, most typically a letter from your doctor.

Before our initial meeting I ask new clients to fill out, or at least review, my Estate Planning Questionnaire. We discuss your assets and chosen beneficiaries, plus who you would want to make decisions for you if you are not able to make decisions for yourself. We discuss various distribution scenarios, such as whether you want your beneficiaries to receive the assets immediately at your death, or if you want distributions spread out over time (as is common with minor children). We discuss potential tax issues. Due to space constraints I’ll cover just two of the estate planning documents in use in California: the revocable trust and an Advance Health Care Directive.

In California revocable trusts are used primarily to avoid high probate fees and for incapacity planning. They can also be used to distribute assets over time. With a will, whatever assets you own at your death are distributed shortly thereafter. (It is often said that a will “speaks” at death.) A trust is much more flexible. For example, at death certain trust assets may be set aside in a subtrust to pay for college expenses over time, or support a spouse until his or her death and then allow the assets to go to children of a prior marriage. Trusts allow for incapacity planning, as the named successor trustee can take over if need be, even temporarily.

An Advance Health Care Directive is another important document. It allows you to state what medical treatments and life-sustaining measures you would like to receive and who would make your health care decisions if you are unable to make them yourself. In the absence of an AHCD well-meaning family members could argue over treatment options. There are other documents most California planners recommend, such as the Durable Power of Attorney and Will or Pour-over Will. These are explained on my website.

Can you now answer the questions/statements I opened with?

The person who plans to “spend it all” before his death: obviously we have no idea when we’ll die or what our assets will be at our death. [This is just common sense, not a legal answer.]

The person with “no estate” may have personal items of value or a pet that must be provided for. Also, estate or no, we need documents in place to provide for our own possible incapacity.

The client whose children will “sort out” options at the client’s death or temporary incapacity: do you really think that is a good idea? Unfortunately a death tends to exacerbate family issues, rather than exert a calming effect. Do your loved ones a favor: work this out in advance.

Remember, when, or if, something happens to us, most of us have specific ideas about how we would want affairs managed-who would make medical decisions for us, what our wishes are in that regard; who our assets pass to; who would be responsible for making those distributions, and so on. Additionally, if our wishes aren’t clearly documented, those left behind and responsible for implementing those decisions can be left wondering what our wishes would be-an added stress at an already difficult time. We also do our best thinking when we are not in a crisis or emergency situation; there is time and energy to consider options, what works best for you and your loved ones.

Part II: What Happens Next?

Congratulations! You’ve answered the questions, made your decisions and signed your estate planning documents. What happens next?

Have a discussion with your agent for healthcare about what your end-of-life decisions are and what matters are important to you regarding your care. The ACHD names an agent to act for you and make health care decisions on your behalf; it (and you) can’t possibly anticipate all medical decisions to be made and options available. Therefore, it is important to have a discussion with your agents about your values and wishes. A tool many clients have found helpful for this discussion is the “Go Wish” deck of cards available at www.gowish.org. The cards have simple statements such as “To have close friends near” and “To be treated the way I want.” You sort this various wishes/cards into piles depending on how important they are to you.

If you have a trust it is important to make sure that your assets are properly funded into the trust. Your attorney will help you with this or give you instructions for titling assets in the name of the trust. Whether you have a will or a trust, keep your document up to date. If you are no longer in contact with the person you wish to manage your affairs, name someone else. Let your attorney know if you get divorced or married, or there are other significant changes in your life.

Your agents should know where your original estate planning documents are kept and how to access them. After your death your successor trustee or executor contacts your estate planning attorney OR any other estate planning attorney to administer your estate. This involves collecting and valuing assets, paying bills (including filing your last tax return), collecting any money you were owed at your death and eventually distributing remaining assets to your beneficiaries.

Thanks for your time and attention. This information in no way constitutes legal advice or creates an attorney-client relationship with the reader. For more information contact Jennifer Cowan: 415.485.4437; cowanlaw@comcast.net; www.cowanlawoffices.com.