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Digital Assets and Estate Planning Symposium

Learn about identifying and safeguarding digital assets, client concerns and wishes, sample language, and the Uniform Fiduciary Access to Digital Assets Act.

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Digital Assets and Estate Planning Symposium

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  1. Digital Assets and Estate Planning MCLE Estate Planning Symposium 2015 June 17, 2015 Katie L. S. Von Kohorn, Esq. Casner & Edwards LLP 303 Congress St., Boston MA 02210 vonkohorn@casneredwards.com @kszal 617.426.5900

  2. Agenda • Identifying digital assets • Client wishes and concerns • Sample language • Safeguarding digital assets • Uniform Fiduciary Access to Digital Assets Act • Tips for fiduciaries: following TOS • tl; dr

  3. Identifying Digital Assets

  4. Identifying Digital Assets • Password-protected tangibles: mobile phones, computers, tablets • Online financial information: Bank accounts, Mint.com, Quicken • Email accounts • Cloud storage: Dropbox, iCloud, Google Drive • Social media: Facebook, Twitter, LinkedIn, Pinterest, Instagram • Other online accounts: dating sites, Amazon, gaming sites, rewards programs • Media: iTunes, Netflix • Virtual currency and P2P payments: bitcoin, Paypal, Venmo • Intellectual property: blogs, domain names

  5. Client wishes and concerns • Does client want anyone to have access? Fiduciary? Digital PR? • Email: stored or deleted? Client-dependent: would letters be kept or destroyed • Note: may be subject to CFAA and ECPA • Online financial accounts: May be fiduciaries’ chief concern • Access to photos and videos: Dropbox, Google Drive, Flickr • Does client want archived profile? Facebook “legacy” page • Shutting down other accounts: online shopping, etc. • May anyone else access digital media or rewards programs? • iTunes license, Kindle, frequent flier miles, Starwood points • Virtual currency: Bitcoin needs unique key. Paypal will issue check for balance. • Intellectual property: Should anyone operate or sell client’s blog or domain names?

  6. Sample LanguagePLEASE NOTE: ALL SAMPLE LANGUAGE PROVIDED IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. Subject to any limitations imposed under federal, state, or contract law, my [Personal Representatives] shall have the power to locate, access, administer, distribute and dispose of my Digital Assets (defined below). The power to administer includes the power to obtain, access, and control my passwords and other electronic credentials associated with my Digital Assets, the power to transfer information and property, [and the power to delete information]. For the purposes of this [will], “Digital Assets” include (1) any files stored on my electronic devices, including but not limited to desktops, laptops, tablets, peripherals, storage devices, mobile phones, and any similar digital device which currently exists or may exist at the time of my death, (2) any account owned by me or to which I have access governed by a terms-of-service agreement, including but not limited to email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts and similar digital items which currently exist or may exist at the time of my death, regardless of the ownership of the physical device upon which the digital information is stored. I authorize any person or entity who controls access to a Digital Asset to grant to my [Personal Representatives] full access to such Digital Asset, including without limitation any and all of my information pertaining to the Digital Asset, including passwords, access codes, the contents of all of my electronic communications, and any and all electronically stored information. This authorization shall be construed as my consent pursuant to the Electronic Communications Privacy Act of 1986, as amended, the Computer Fraud and Abuse Act of 1986, as amended, and any other federal or state privacy or criminal law. This authorization [shall be immediately effective] and [shall remain effective after my death]. Include in powers section: My [Personal Representatives] may hire forensic accountants or other technical experts to assist them in obtaining access and control over my Digital Assets.

  7. Safeguarding digital assets

  8. Safeguarding digital assets • Under-the-mattress storage? • Protection from hackers? • Cloud password protection: Lastpass, Dashlane, Sticky Password Premium • Deathswitch.com - sends emails after death • Access to photos and videos: Dropbox, Google Drive, Flickr • Privacy: Does client want archived profile or blog? Facebook “legacy” page. Deleting blog? • Shutting down other accounts: online shopping, etc. – links to credit cards • Access to digital media or rewards programs? • iTunes license, frequent flier miles, Starwood points • Virtual currency • Missing assets?

  9. Uniform Fiduciary Access to Digital Assets Act Final version approved July 2014 Adopted in Delaware; introduced in 26 states in 2015 Industry input in drafting Provides for fiduciary access to digital assets, while respecting privacy and intent of account holder • PRs, guardians, agents under POA, and trustees • Digital assets = electronic records Massachusetts committee – will introduce to Legislature as-is Now, industry opposition to enactment • Privacy concerns? ACLU • Concern over possible conflict with CFA and ECPA Without Uniform Act, are we stuck with TOS and no access?

  10. Tips for fiduciaries: following TOS

  11. Tips for fiduciaries: following TOS • Facebook: Legacy contact • Can delete profile upon user’s death or designate contact to update user’s profile (updates re: funeral, etc.) • Google: Inactive Account Manager • Google, Youtube, etc. May provide access to data if user has so requested; manager can download data for 3 months after notification • Twitter: deactivate only • Request to deactivate may come from PR or family member ; can only request deletion of account or removal of photos, and Twitter “may not honor every request” • Yahoo: close account only • Ajemian case: TOS will not govern forum selection. TOS will not allow access to contents of email, but will allow account to be closed. • Instagram: memorialize • Memorializing account locks it, cannot be edited. “Verified immediate family members” may request removal; page suggests that that person must be a PR, but is unclear

  12. tl;dr.

  13. tl;dr. • Many different kinds of digital assets; keep an active list as assets change over time • Clients should know where passwords are • Professional fiduciaries have fewer options • UFADAA: fate uncertain

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