Monday, January 10, 2011

Estate Planning for the Digital Ever-After

We talk to our estate planning clients about the various types of property that constitute an individual's "estate," in particular (1) tangible personal property, (2) intangible personal property, and (3) real property.

Default rules govern the disposition of each type of property, and it is important for a client to consider particular ramifications and issues that may affect a house differently than a car, or a bank account differently than a copyright.

ALAS!! Word arrives in this weekend's New York Times Magazine that we have been failing to discuss an entire, increasingly important type of property: the various digital records that people are accumulating more and more.  Rob Walker's fascinating article, "Cyberspace When You're Dead," is here.

Walker frames the issue as follows:
It’s now taken for granted that the things we do online are reflections of who we are or announcements of who we wish to be. So what happens to this version of you that you’ve built with bits? Who will have access to which parts of it, and for how long?

Not many people have given serious thought to these questions. Maybe that’s partly because what we do online still feels somehow novel and ephemeral, although it really shouldn’t anymore. Or maybe it’s because pondering mortality is simply a downer. (Only about a third of Americans even have a will.) By and large, the major companies that enable our Web-articulated selves have vague policies about the fate of our digital afterlives, or no policies at all. Estate law has only begun to consider the topic...
Nevertheless: people die. For most of us, the fate of tweets and status updates and the like may seem trivial (who cares — I’ll be dead!). But increasingly we’re not leaving a record of life by culling and stowing away physical journals or shoeboxes of letters and photographs for heirs or the future. Instead, we are, collectively, busy producing fresh masses of life-affirming digital stuff: five billion images and counting on Flickr; hundreds of thousands of YouTube videos uploaded every day; oceans of content from 20 million bloggers and 500 million Facebook members; two billion tweets a month ...
We pile up digital possessions and expressions, and we tend to leave them piled up, like virtual hoarders. At some point, these hoards will intersect with the banal inevitability of human mortality. One estimate pegs the number of U.S. Facebook users who die annually at something like 375,000. Academics have begun to explore the subject (how does this change the way we remember and grieve?), social-media consultants have begun to talk about it (what are the legal implications?) and entrepreneurs are trying to build whole new businesses around digital-afterlife management (is there a profit opportunity here?).
It turns out that some tech-savvy individuals are starting to designate a "digital executor" in their estate planning documents to tend to all those photos and tweets; meanwhile, start-up companies (including the cleverly-named Legacy Locker, The Digital Beyond, and Entrustet) are sprouting up and offering to help in the digital estate planning process.

Meanwhile, disputes about post-mortem digital property rights are finding their way into the courts.  For instance, Walker cites in his article to cases of deceased soldiers whose parents are demanding that technology companies, such as Yahoo and Google, turn over internet passwords to the estate's executor (or administrator); in theory, since those passwords were the property of the deceased individual, they should be transferred to the executor.
There is no doubt that -- at least for this group of estate planning attorneys -- the Times' article has raised an issue about which we have not previously given much thought... but that is likely to become more significant with each passing blog post!!