Status Update: Digital Assets and Death. Presented by Tanya L. Butler Stewart McKelvey
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1 Status Update: Digital Assets and Death Presented by Tanya L. Butler Stewart McKelvey
2 Introduction From love letters to Gmail From photo albums to Flickr From LPs to itunes From hardcovers to Kindles From board games to World of Warcraft PayPal accounts, ebay stores, Bitcoin, domain names, social media accounts Stewart McKelvey all rights reserved
3 Outline 1. What are digital assets? 2. What is the law (if any)? 3. What s an executor to do? 4. What s an estate planner to do? Stewart McKelvey all rights reserved
4 1. What are digital assets? Think back to first-year property law: Property is a bundle of rights Stewart McKelvey all rights reserved
5 What makes them so difficult to administer? Intangible and fluid Poorly understood Private and secret Law unsettled and unclear: overlap of public (probate) and private (contract) conflict of laws issues Stewart McKelvey all rights reserved
6 Digital Assets 2 general types of digital assets : 1. Sentimental value 2. Monetary value Stewart McKelvey all rights reserved
7 Digital Assets Can be divided again into 2 categories: 1. Assets 2. Accounts Stewart McKelvey all rights reserved
8 Assets Digital photos & videos Tweets and texts Music and ebooks Accounts. Hotmail, Gmail, Yahoo!. Facebook, Flickr. Twitter. itunes, Kindle Stewart McKelvey all rights reserved
9 2. What is the law? 2 sources: Legislation Contract (terms of service) Stewart McKelvey all rights reserved
10 Legislation Legislation in some U.S. states e.g. Oklahoma Statutes, The executor or administrator of an estate shall have the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any service websites. Uniform Law Commission Stewart McKelvey all rights reserved
11 Terms of Service Most won t reveal or reset password of incapacitated or deceased person Terms of Service may state account terminates on death and may prohibit user from authorizing others to access account May prevent even court-appointed fiduciary from accessing incapacitated or deceased person s account Stewart McKelvey all rights reserved
12 In re Ellsworth, No , 651 DE (Mich. Prob. Ct. 2005) 20-year-old Lance Corporal Justin Ellsworth killed during tour in Iraq Died intestate, unmarried, no children Communicated with family by during two-year tour 12
13 In re Ellsworth, cont d Father argued Yahoo! account should pass to him as personal property Yahoo! initially refused, citing terms of service Michigan Probate Court ordered disclosure of s on CD, but not access to account Probable limited value as precedent Stewart McKelvey all rights reserved
14 3. What s an executor to do? The principles are the same: Identify Locate Access Distribute Stewart McKelvey all rights reserved
15 1. Memorialize the account 2. Request contents of account, and then have it deleted 3. Facebook app called If I die set up before death to put accounts in order and send out a last message 4. US users can now grant another user permission to manage account, called legacy contact 15
16 Inactive Account Manager users can choose to notify someone if account has been inactive for a certain period of time or share account data e.g., Gmail, Picasa, YouTube 16
17 Yahoo Ending: If today was the last day of your life, would you be ready for the journey? Stewart McKelvey all rights reserved
18 4. What s an estate planner to do? Include inventory of digital assets as part of your planning checklist Consider appointing separate digital executor Encourage hit by a bus memo to executor Help executors navigate accessing and transferring individual digital assets Suggest commercial digital estate planning service where appropriate Stewart McKelvey all rights reserved
19 Sample Digital Executor Clause Digital Estate means all intangible and/or digital assets of my personal estate stored electronically, excepting bank accounts and other financial or insurance products, which I intend to be administered by my Digital Executor according to such wishes as I have made known to my Digital Executor in a memorandum of digital instructions which I have prepared and provided to my Digital Executor Stewart McKelvey all rights reserved
20 Sample Digital Executor Clause, cont d Digital Trustee or Digital Trustees means both the digital executors of my Will and the digital trustees of my digital estate and any reference to my Digital Trustee or my Digital Trustees includes all genders and the singular or the plural as the context requires; if at any time there is more than one Digital Trustee of my estate, then my Digital Trustees shall act unanimously Stewart McKelvey all rights reserved
21 Sample Digital Executor Clause cont d I appoint X to be my Digital Executor and Digital Trustee of this my Will. If X is unwilling or unable to act or to continue to act as my Digital Executor and Digital Trustee, then I appoint Y to be my Digital Executor and Digital Trustee of this my Will. I intend that my Executor and Trustee of this my Will provide all necessary and reasonable cooperation to my Digital Executor and Digital Trustee, so that my Digital Executor and Digital Trustee is able to effectively administer my Digital Estate according to my wishes. Ryan N. Howe & Andrew S. MacKay of Alexander Holburn Beaudin + Lang LLP Stewart McKelvey all rights reserved
22 Commercial Digital Estate Planning Services Legacy Locker Death Switch SecureSafe Stewart McKelvey all rights reserved
23 Questions? Stewart McKelvey all rights reserved
24 Tanya L. Butler, TEP Stewart McKelvey Purdy s Wharf, Tower I 1959 Upper Water Street, Suite 900 Halifax, Nova Scotia B3J 3N2 tbutler@stewartmckelvey.com Tel: Stewart McKelvey all rights reserved
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