Digital Assets and Estate Planning - PowerPoint Presentation

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Digital Assets and Estate PlanningMCLE Estate Planning Symposium 2015June 17, 2015Katie L. S. Von Kohorn, Esq.Casner & Edwards LLP303 Congress St., Boston MA 02210vonkohorn@casneredwards.com @kszal617.426.5900

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AgendaIdentifying digital assetsClient wishes and concernsSample languageSafeguarding digital assetsUniform Fiduciary Access to Digital Assets ActTips for fiduciaries: following TOStl; dr

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Identifying Digital Assets3Slide4

Identifying Digital AssetsPassword-protected tangibles: mobile phones, computers, tabletsOnline financial information: Bank accounts, Mint.com, QuickenEmail accounts Cloud storage: Dropbox, iCloud, Google DriveSocial media: Facebook, Twitter, LinkedIn, Pinterest, InstagramOther online accounts: dating sites, Amazon, gaming sites, rewards programsMedia: iTunes, Netflix

Virtual currency and P2P payments:

bitcoin,

Paypal, VenmoIntellectual property:

blogs, domain names

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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 destroyedNote: may be subject to CFAA and ECPAOnline financial accounts: May be fiduciaries’ chief concernAccess to photos and videos: Dropbox, Google Drive, FlickrDoes 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?

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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.

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Safeguarding digital assets 7Slide8

Safeguarding digital assets Under-the-mattress storage? Protection from hackers?Cloud password protection: Lastpass, Dashlane, Sticky Password PremiumDeathswitch.com - sends emails after deathAccess to photos and videos: Dropbox, Google Drive, FlickrPrivacy: 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?

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Uniform Fiduciary Access to Digital Assets Act 9

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?Slide10

Tips for fiduciaries: following TOS10Slide11

Tips for fiduciaries: following TOS11

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 unclearSlide12

tl;dr.12Slide13

tl;dr.13Many different kinds of digital assets; keep an active list as assets change over timeClients should know where passwords areProfessional fiduciaries have fewer optionsUFADAA: fate uncertain