When you die, your physical assets are willed through your estate to those designated who survive your passing. We are talking about homes and their contents, bank accounts and other accumulated physical assets.
What happens, however, to digital assets? Think about the digital assets you may have accumulated in the last half century. These can include:
- Emails
- Digital Images and Documents stored in the Cloud
- Social Media Content
- Blogs
- Podcasts
- Websites and online businesses
- Cryptocurrencies and non-fungible tokens (NFTs)
- Paypal, Stripe, and other digital transaction providers
- Google and Apple Pay wallets
If it is online, is it considered personal property everywhere? Increasingly, the answer is almost always yes, except in places where estate law is still evolving, such as China. What is different between countries governed by common or civil law is the definition of what is and is not considered a digital asset.
For example, in some countries, online photos, documents and music files may not be classified as personal property, particularly if these are shared with others.
Streaming services and software subscriptions are not necessarily inheritable or transferable based on the contract terms associated with these services.
Metadata and general information classified as descriptors or factual are typically not considered personal property. Examples of these include date, file size and technical information attached to a digital file.
The complexity of digital assets, not surprisingly, usually requires a digital executor named separately in a will.
At age 76, I’ve recently begun exploring what I need to do about my social media presence when I die. I was an early adopter and tried out dozens of social media providers when these applications first came on the scene. No doubt, there are legacy records of me on MySpace, Orkut, and others, most of which you have probably never heard. I still have, however, active accounts on at least ten social media sites, and each has its own requirements for dealing with subscriber deaths.
Since I use WordPress to do this blog, it was important for me to find out what would happen to it in the event of my death. WordPress requires the site name, the name of the owner and email address, and the desired action by those named as inheritors of the digital asset. Documentation requirements include a death certificate, proof of authority to act on behalf of the deceased, including the relationship and the action requested, including ending subscriptions and billing.
Some, like Facebook, Instagram and Threads, all Meta properties, require a death certificate and documentation to delete an account. Facebook can memorialize an account to leave it as a “living legacy.”
YouTube, a Google property, provides an Inactive Account Manager process to close or preserve existing online data.
LinkedIn and X, formerly Twitter, also require proof of death documentation.
I am not a subscriber to TikTok, but from what I understand, it has no formal process for dealing with the death of a subscriber.
In the event of a death and no existing digital executor, online assets remain open and accessible. That’s why estate planning that includes dealing with legacy digital assets in a will is important.
What happens when you add artificial intelligence (AI) into this mix? Lawyers who handle estate planning are increasingly aware of AI and how it can be used to compile digital assets and track them. AI can simplify social media account management for deactivation and memorialization. AI-drafted wills are already becoming a thing, but not all jurisdictions may recognize them as legal. Finally, using the current AI tools available comes with some risk since hallucinations persist.
