In 2013, British computer engineer James Howell tried to get rid of some clutter when he decided to throw out an old computer hard drive he was no longer using. It was only after the city disposal crew had taken the drive to its local landfill that Howell remembered that he had stored 7,500 Bitcoins on the drive. He's been desperately trying to figure out how to get that drive back ever since. The lost Bitcoins are worth about $246 million. Without the info on the drive, he's out every penny of it.
Howell's story is a powerful cautionary tale we should take heed of. Because we all need to take better care of our digital assets. That's just as true if you don't have a single Bitcoin or still struggle to understand what a nonfungible token (NFT) is. In all likelihood, if you're reading this blog on a phone or computer, you already have a large digital estate. And the fact you aren't aware of that doesn't mean you're immune to its disappearance. Instead, you're probably more vulnerable to its loss.
So let's discuss what a digital estate consists of, why it's so important to protect it, and why you should include digital assets in your estate plan.
UNDERSTANDING DIGITAL ASSETS AND YOUR DIGITAL ESTATE
“Digital asset” refers to anything that can be stored in a digital file. It can include things that have financial value (such as cybercurrency), but the concept extends to include any digital representation of anything else. For example, your home is an asset, and the picture of your home that you took with a digital camera is a digital asset. Your stock in a company is an asset; the computer account you use to log on to see how your stock is doing is a digital asset. So yes, every file on your computers and cell phones is a digital asset. Every picture, every text message, every email, every Facebook post, and more.
The size of your digital estate is a big issue, but it isn't the only one.
Another issue can arise if you use one company's account information (e.g., your Facebook user name) to access your accounts for other companys' websites. Canceling Facebook wouldn't impact just your social media profile; it could also mean you've lost access to those accounts.
Digital asset ownership and control can get complicated from a legal perspective, too.
Say, for instance, you have frequent flyer miles or other discount membership points. They have financial value, but there can be limitations on how you can use them, including selling or transferring them to anyone else. Sometimes your asset is only the account information, but you don't always outright own or control the underlying account itself.
But it's still a part of your digital estate because you have some vested interest in controlling it. And losing control (e.g., if your credit card number is hacked) could harm you.
Also, different services will have their own terms of service, and since all of this is on the internet, competing state and federal laws may apply. An estate planning attorney can help you sort the issues, but, for now, realize that mixed-control assets are something to keep in mind.
EVALUATING THE VALUE OF YOUR DIGITAL ASSETS
When it comes to protecting your digital assets, you should be considering any immediate “real life” concerns, as well as those that relate to estate planning. Ask yourself questions such as these about each asset, and you'll start to see how this plays out:
How essential is this asset to your day-to-day life? How disruptive would it be if you no longer had access to it?
Does access or use of this account tie into any others? (E.g., does access to this account, such as Facebook and Microsoft, impact other assets?)
Does this asset include banking information, credit cards, or automatic billing?
Is this something that has financial or sentimental value?
Is this a one-of-a-kind or something that can be replaced?
Is this something you would want to transfer to an heir?
Should an executor or other representatives have access to it if you are not able to? (e.g., emails, legal documents)
What should the ultimate fate of this item be? (Is this something to be deleted, transferred, or you don't care?)
A DIGITAL ESTATE PLAN IS ESSENTIAL
Think back to James Howell and how different his life would be if he'd bothered to create an inventory of his digital assets, so he knew where his Bitcoin was. It's easy to shake our heads, but do you have a digital inventory of your own?
Have you ever received an email from a company about an account you didn't remember you had in the first place? Or maybe you have an old, forgotten email address you no longer check, but it still exists out there somewhere? You may not care about it any longer, but its abandonment is its appeal for some hacker or scam artist.
It's worth it to prepare a complete digital asset inventory (STEP has a checklist to get you started) and update the list every year. Consider some types of items to include:
- Online financial accounts including bank, brokerage, retirement, credit card, and insurance accounts
- PayPal, Venmo, Zelle, or other online payment accounts
- Online accounts for utilities, cable, phone, and other bills paid online
- Online retail accounts and apps (e.g., eBay, Amazon, and iTunes)
- Music sites (e.g., Pandora and Spotify)
- Your Facebook, Twitter, LinkedIn, and other social media
- Photo- or video-sharing sites (e.g., YouTube, Instagram)
- Blogs and websites you own
- Document and data storage accounts
Once you have a complete inventory, the attorneys at Great Lakes Family Probate & Estates can start working on a digital estate plan. We at GLFPE can help you decide who should get specific digital assets and appoint an executor who can have access and control over your digital assets.
Under Michigan law, if you formally appoint someone as your representative/executor to act on your behalf in the digital realm, then they can direct “digital custodians” to turn over your account information and access. With authorization, your executor can log on to your accounts, cancel auto-payments and subscriptions, transfer assets, update contact information, and delete no longer needed accounts.
However, you have to give someone the right to do this.
Without it, the digital custodians (e.g., your bank) can refuse them access. Notices and messages will go unread to email accounts no one can access. The auto-payments will continue. And so on.
We should note that Google does have an “Inactive Account Manager,” After three months of non-use, it will automatically delete accounts or transfer them to a previously-named designee. Facebook and Apple let you assign a “Legacy Contact” to access your data.
One word of caution: While you should have a digital estate plan, make sure you do not include your digital inventory in your will. A will is a public document, so if you did include it, all of the information—your account numbers and passwords—would become public information. Keep the actual inventory safe and separate.
And we can't forget that even your personal information has value on its own. The value of your identity doesn't vanish, even after you've passed away. Incredibly, an estimated 2.5 million deceased people are victims of identity theft each year.
TOOLS TO HELP YOU MAINTAIN YOUR DIGITAL ESTATE
Most digital security experts say that everyone should be using some sort of password manager. A password manager is a program that automatically generates a new complex password for each account that requires one, and then stores that account information and password for future use. So the accounts are all in one place, and the goal is that you only need to remember one password—the one to access your password manager.
For fee-based services, the New York Times' Wirecutter, Consumer Reports, and Wired magazine all agree that 1Password is the best overall password manager, while Bitwarden offers the best free version.
There's no doubt that digital asset management and retention entities are going to become increasingly important. But even larger digital archive companies are still relatively new companies. When it comes to the companies specifically marketing as “digital estate vaults” that can protect digital assets after your death, it remains to be seen if any of them will exist that long.
For example, in 2013, there was quite a bit of attention on some “digital legacy” entities, AssetLock, Legacy Locker, and CirrusLegacy. These companies promised to look after your digital estate for you, even after you were gone. But AssetLock was bought out, and Cirrus Legacy's website is currently for sale. Legacy Locker was bought by PasswordBox in 2013, and then in 2016, PasswordBox became TrueKey.
Keep in mind that every time a company changes hands, there's likely to be tech infrastructure changes as well. Data may be lost or corrupted; cost, services, and capabilities may change. Or perhaps all of that remains the same, but the new firm (or even the old firm) changes the user interface to something you no longer want to use.
Before you sign up for any digital legacy program, make sure you review the firm's terms of service and related material so you understand exactly what would happen to your content in the event of a company's sale, closing, or other significant change. It's a reminder of why it is so important to have a great estate planning attorney—to scour those terms of service and know what a company is promising.
The Importance of Paper
One of the best, most secure ways to protect digital assets turns out to be one of the oldest methods: Keeping a paper copy.
Despite all those times you've heard people say, “Don't write down your password,” some digital experts agree that it's a good idea to keep a paper print-out of your digital account information.
No, these experts are not suggesting you keep the passwords on a Post-It® on your desk. Instead, they say to print out the entire inventory; give it to your attorney to store or keep it in a safe with your other valuables. (By “safe,” we don't mean a safe deposit box since safe deposit boxes are not safe after all.)
Also, as a reminder of what we'd said earlier: While you should include this information in your estate plan, the account inventory should not be a part of your will. It needs to be a separate document.
Whether digital assets or traditional ones, a great estate plan can make all the difference, and an estate planning attorney can help you understand the critical issues that need to be addressed now and in the future. To ensure that your estate plan is up-to-date, call or click today for a consultation with a Great Lakes Family Probate & Estates attorney at 1-888-554-5373 or email us at [email protected].