The Need for Digital Estate Planning

There is a new show on NBC called Revolution. The premise of the show is that there has been a worldwide blackout and all the electrical devices have shutdown. No TV. No computer, no A/C, etc.  The blackout has lasted 15 years.  As a quasi-sci-fi geek and a big fan of  J.J. Abrams, the producer, the story is right up my alley.

In one scene in the second episode, one of the characters pulls out an IPhone™4. I guess the blackout occurred prior to September 21, 2012. The character laments that the only pictures she has of her children were taken with the phone’s camera.  No electricity, no access to the pictures.  For unexplained reasons, she hasn’t seen her children alive since the blackout and the only pictures she has were on her phone.

I’ll admit that this is a bit of an extreme example but not too far off when returning to the world of reality because the issue of accessing those assets is an estate planning issue.

What if the you could not access the pictures because the original owner of the camera? Or in a more likely scenario, the digital account held pictures (Photobucket™), emails (Yahoo™, Google™, Hotmail™), documents (DropBox™), etc. where the account owner has passed away or become incapacitated. If you did not know the password to the phone or the account, you would be faced with limited options in getting those pictures or other electronic media. I would think that might even be more frustrating.

Thus, an estate planning issue.

That phone and its pictures are part of a person’s assets. It would be a part of a person’s digital estate. Maybe a picture does not have a high financial value but it does have a emotional one, especially, to the loved ones seeking access to that digital assets. Some people have even sued to gain access to their loved one’s email accounts.

Most non-digital assets have a process for the personal representative (probate) or beneficiary (non-probate) to gain access or control because of a long litany of case law or legislation. Digital assets and a person’s digital estate has only arise within the last 20 years and exploded with the emergence of smartphones. There is no legal history regarding a digital estate to fall back on for the personal representative to gain access to that digital asset.

Access to a digital asset is currently dictated by the privacy policies and contractual agreements between the account holder (even if deceased) and the service provider (say Google™). This has created a hodgepodge of policies that has generally resulted in denying access to the non-digital asset holder seeking access or making it very difficult to gain access for the the non-digital asset holder.

Right now, there are some solutions. Many are not ideal. I will write about them next time.