People generally know that the purpose of a will is to facilitate the orderly distribution of assets after a person’s death. Therefore, it logically flows that assets that expire upon death do not need to be handled by a will. They expire. However, the concept of ownership has changed drastically over the past decade. Digital media, social media, and the internet in general have changed how people think they own things and how they actually own things. Would you be surprised to know that you don’t actually own the album you just bought from iTunes? You do not own it in the same way as the CD you bought from a music store. Your rights are limited when you are buying things online. You are buying the digital rights to use a file rather than buying the actual file. Today, most digital licenses are individually owned, non-transferrable, and expire on death. Good examples of these are email accounts, such as Gmail, social media accounts, such as Facebook, and media accounts, such as iTunes and Amazon. Ownership has changed from owning a physical, tangible object to owning a license for use of something with limited rights. You do not have a CD to play wherever you want anymore; you have a digital file that can only be played on certain devices. Usually devices that are made by the company you bought the file from – such as Apple limiting the use of its media files to its products. At the end of the day, you still paid the same amount of money for a digital album as you would have for a tangible CD. So, how is it fair that these licenses expire on death and are non-transferrable? Shouldn’t these files still be considered an asset? And shouldn’t there be a way to protect them?
The operative word in a lot of these digital user agreements is is “individually.” Files you buy on iTunes are owned individually, cannot be transferred, and expire on death. So, you spend thousands of dollars on a digital music collection and instead of being able to bequeath your prized collection of CDs to your favorite grandchild, you lose your collection when you die. Read the user agreements for digital media and see for yourself. However, there are ways to solve this problem. One solution is owning the files by an entity other than an individual. What about digital assets owned by a business or a trust?
Why would people want a legal trust for their online accounts? This is why the word “individually” is important; most online user agreements are limited to individual ownership. Trusts and business entities, on the other hand, survive death. This eliminates the expire on death terms of digital user agreements. Thus, someone else can have the right to use your digital media after your death if you utilize some creative estate planning to protect these assets.
Online account owners should think about what they want to happen to their accounts if something happens to them. Estate planning must now include the digital. This could include designating an executor of your online accounts, setting out terms of their use post-death, and providing passwords to the accounts. Again, this is not such an easy task. Think of the number of different passwords you have, how often you reset those passwords, and how often they expire on their own. Keeping and updating this information in a “will” may not be the most viable option. However, digital accounts are relevant after death, not only as memorials, but also as a means of gathering information and handling other estate assets. Imagine all of the bills and information you receive electronically. How will your estate know about potential creditors? Or how much to pay for your mortgage? There are a myriad of options for handling and protecting your digital accounts and media that an estate planning attorney at Chepenik Trushin LLP can help your navigate.
If you or someone you know have digital assets that you would like to protect, the attorneys at Chepenik Trushin LLP can help you.