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 time, read the "agreements" that are part of your iTunes, Facebook, and Twitter accounts, among others - and learn more about what you do and 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.
Can a digital executor:
Access documents/accounts/social media?
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 via email concerning an illegal activity, then that person is jeopardized when the “digital executor” finds out about the email communications. Will the “digital executor” then have the legal/moral responsibility to report the communication/illegal activity?
Thus, we can see that the matter of digital inheritance is a complex issue. Interestingly, the topic is more usually covered 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) 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 more extensive than you might have believed.
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