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What Happens to Digital Assets After Death

Dec 7, 2018 - News by

Home videos and photo albums have been replaced by our social media accounts; Grandpa’s record collection has been replaced by iTunes and other digital music. These can be important mementos after a loved one has passed. Just like physical items, a person can state intentions for their “digital assets” in will. In addition to emotional/sentimental value, financial stakes can be high. These can have real value, such as pages associated with artists, small businesses, etc. These pages risk losing significant revenue if they lose contact with customers.

It may seem like a simple solution would be to write down all of your passwords in a safe place alongside your will. However, this may get your beneficiaries in trouble—Florida Statutes Section 740.05(2) provides that the authority of a beneficiary of a digital asset of a user is subject to the applicable terms-of-service agreement. Many terms of service provide that a user may not provide their password to another or that no person other than the user may access the account. That section of the Florida Statutes also provides that such authority may not be used to impersonate the user.

EMAIL

Email accounts may provide copies of email to the estate’s executor, known as a “personal representative” in Florida, but may not if not in your will. Yahoo’s terms of service, for example, state that the user’s right to the account terminates on death and data can be deleted.It might seem like common sense, but Florida Statutes, Section 740.004 provides that a personal representative or other beneficiary cannot receive any rights over and above what the terms of service provide for the user.

SOCIAL MEDIA

Facebook allows users to choose options: memorialize account or designate legacy. Whatever action is chosen will go into effect when Facebook is notified of the person’s death. If no election is made, the default is for accounts to be memorialized when Facebook is notified of your passing. If account is not deleted or memorialized, it will remain active forever—it will appear in “people you may know” and remind friends and family of birthday, etc.

NOTE: Florida Statutes provide that, where such designations are made, it overrides any contrary directions in a will. Florida Statutes, Section 740.003

A memorialized profile will read: “Remembering [name]”. The profile and its content will remain visible to those it is shared with; the profile will not show up in searches or “people you may know.” The Legacy contact can choose to maintain memorialized account or choose for account to be permanently deleted. Memorialized accounts cannot be changed if there is no designated legacy contact.

Instagram can be memorialized or deactivated similar to Facebook, but Twitter is a little more involved; Twitter requires someone completes a form to report the death of user and deactivate the account providing username, death certificate and proof of reporters’ identity and relationship to deceased.

Linkedin can close an account if you have basic personal information plus a link to their obituary, and the name of the company they last worked for.

Google allows account holders to nominate an “Inactive account manager.” The accountholder choose when Google deactivates their account – after 3, 6, 9, or 12 months of inactivity.

Accountholders can either (1) designate up to 10 people to be notified if their account “goes silent” those people will be given a link to download photos, videos, documents, or other data from the inactive account or (2) choose for their account information to be deleted altogether.

DIGITAL GAMES/BOOKS/MUSIC

We think we own our digital collections of music, books, games, movies, and more; however it’s usually the case that we have only been granted a license which expires and is not transferable upon death.Again, Florida Statutes 740.004 provides that the rights available to a beneficiary are limited to those granted to the user in the Terms of Service.

CRYPTOCURRENCY

Digital, internet-based currency or “cryptocurrency” exists only online and is stored in internet “wallets” protected by unbreakable cryptography. Digital “wallets” can be accessed only by a code known as a private key. The very thing that makes cryptocurrency so secure is the same thing that makes it difficult to recover—If a person with a digital wallet passes away and nobody else has the private key to the account, the funds in the account cannot be disbursed.

The market for this currency, which does not exist in any physical form, is worth over $100 billion. That means there’s a lot of money out there that families may not be able to access (and may not even know about!) after the death of a loved one. Existing only online, there may be limited record of the account’s existence, let alone the code to access it.

There are options for those who have cryptocurrency accounts: One is provide the key to someone you trust, either before death or after death. It’s not advisable to list the key to your account in your will, but the more advisable option is to include a reference to the fact that such an account exists in your will and create a separate document to be kept along with the will, listing the key and explaining its significance. This ensures that your personal representative knows the asset exists and how to access it.

Some opt to provide a piece of the key to multiple people, usually intended beneficiaries, who can then combine their pieces after the account holder’s death in order to access the account. This is a risky option, as a piece may be lost or forgotten by a person, rendering the other pieces useless.

Another option to transfer your cryptocurrency is to a “dead man’s switch,” which is an automated program which sends you emails at regular intervals and requires a response and can check databases for your death certificate should you not respond. If the program does not receive a response from you and your death certificate is located in a database, the program will automatically sign the transaction transferring your assets to a designated beneficiary.

A similar option is a “Lock Time Transaction.” The accountholder sets a transaction disbursing the funds to the intended beneficiaries, and must constantly postpone the date of the transaction. Obviously, when the accountholder is no longer alive to manually postpone the transaction, that transaction will automatically occur, having been authorized by the accountholder before their death.

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