In today’s digital age, most people have an online presence. In many cases, this presence is extensive. From photographs to online subscriptions to social media profiles, there are many digital assets that need to be dealt with when a person dies.
Traditional estate planning typically does not address the digital estate. In fact, in California, your executor does not have the power to access your online accounts, even just to close them. In order to prevent your online presence from continuing on without you after you’re gone, you need to take steps to appoint a digital executor who will protect your digital estate when you’re no longer here to manage it yourself.
What Is a Digital Executor?
A digital executor is someone you appoint to manage your digital assets after you die. Your digital executor does not replace your traditional executor, although the same person can play both roles if you so choose. California does not currently recognize digital executors as a legal matter; rather, the person you name should be someone you trust to carry out your wishes with respect to your digital presence.
Either through a will or by some other means, you give someone control over your digital estate by providing:
- A list of your digital accounts
- Instructions for how to access them, including usernames and passwords
- Guidance for how you want each account to be handled when you’re gone
With this information in hand, your digital executor will be able to officially wrap up all of your affairs that may not be addressed in your traditional estate planning documents.
Chances are, you have a lot more digital assets than you think. Some of the most common include:
- Email accounts
- Social media accounts, such as Facebook, Twitter, Instagram, LinkedIn, etc.
- Photo- or video-sharing accounts, such as Flickr or YouTube
- Retail accounts, such as Amazon, iTunes, or eBay
- Blogs or personal webpages
- Music sites, such as Spotify or Pandora
- Online payment accounts, such as Paypal or Venmo
- Bank, investment, or other financial accounts that you manage online
- Utility and other bills that you pay online
- Online data storage sites, such as Google Docs or Dropbox
The list could go on and on. There is seemingly no end to the number of things that people manage online these days. Having a plan in place for dealing with them all after you’re gone is a crucial part of wrapping up your affairs.
Why You Need a Digital Executor
Under current California law, the executor of your estate has no authority to access your digital assets after you’re gone, even just to shut them down. In fact, California does not actually recognize digital executors as a legal matter, but granting someone you trust access to your digital accounts is the only way to ensure that your digital assets will be managed according to your wishes.
Without a digital executor, your digital accounts will continue you to exist without anyone having the right to access, modify, or delete them once you’re gone. Eventually, a company may terminate the account, and any data, files, or other information contained in the accounts will be lost forever.
Chances are, your digital presence is a big part of your life. The thought of all of that continuing on without out you and ultimately just disappearing is disconcerting to most people. The only way to prevent that unfortunate outcome is to appoint a digital executor while you’re still alive.
Much like technology itself, the law regarding digital estate planning and the access to digital assets is constantly changing. It’s possible that California may allow executors to access digital assets down the road, but when and if that will happen is very much uncertain. Until then, naming a digital executor is the only way to protect your digital footprint.
Choice of Law
Should it become necessary to litigate any issues associated with a decedent’s digital assets, choice of legal forum becomes a second area of conflict. Even though some states have enacted legislature that explicitly grants executors of an estate access to digital assets and online accounts, many service agreements have already chosen the jurisdiction under which any disputes would be decided. Conveniently, of course, the creators of these agreements deliberately select states/jurisdictions whose digital assets laws are relaxed and/or give favor towards the account administrators.
Imagine that all of the Facebook users who die each year in the United States (which is reported to be over a quarter million) expire without an executor. That scenario would leave their surviving relatives with the practically impossible task of navigating through the internet attempting to access their loved ones’ digital assets, if they can find them. Those same surviving family members, at that point, not only are they left dealing with the loss of a loved one, but also the added incurred expenditure of litigating such tedious and technological matters. Appointing a digital executor would relieve the judicial system of the growing congestion developing within the probate court because of these new and ever growing issues shadowing over the legal world.
Selecting Your Digital Executor
As our society moves further into a post-modern culture, the role of a digital executor will become increasingly important. An attorney well versed in many areas of law would be the most qualified professional to help protect your digital assets, since they have boundless possibilities, encompassing sentimental and monetary value. When selecting a digital executor, the most attractive qualities to look for would include a lawyer skilled in the areas of: internet law, business law, litigation, intellectual property, contract law and probate law.
The team at the Law Office of Christopher B. Johnson are a unique group of legal professionals experienced and knowledgeable enough to handle all of your needs as digital executor. Each member has a diverse background, equipping them with the skills to competently and efficiently administer your digital assets. Contact them today for an immediate consultation.
How an Experienced Estate Planning Attorney Can Help
Digital estate planning is a new concept for the 21st century. With new technology emerging every day, and the laws on digital estate planning constantly changing to adapt to the digital era, making a digital estate plan and staying on top of it are essential parts of managing your affairs. Consulting a lawyer who is experienced with the ever-changing landscape of digital estate planning will put your mind at ease and ensure that your digital footprint is handled properly after your death.
At the Christopher B. Johnson Law Office, we have over 18 years of experience providing estate planning services to the people of Pasadena, and we are well-versed in handling the new estate planning needs of the modern digital age. If you have questions about naming a digital executor or other aspects of digital estate planning, we’re here to help. Contact us today to discuss your situation.