In this digital age, people are accumulating assets digitally, with no trace of physical evidence of these assets, when these assets had traditionally had a physical existence in past times. For example, photos, businesses, newsletters, and bank statements all existed in a physical form that were well taken care of with a traditional Will.
Now, with the advent of social media and the internet, and the movement for paperless offices and homes, more and more of our personal belongings, businesses and personal lives are shared on the internet. Many people store all of their digital photos on their computers, and post personal content on their Facebook and Twitter pages, as well as their personal websites and blogs. Many people also manage their finances on the internet, through internet banking, paying bills, doing money transfers and receiving statements online. Finally, many people make a living on the internet, with ecommerce and through their websites and blogs. The question is, what happens to all of these digital assets after you pass away?
The answer, unfortunately, is like many conundrums in life: it depends. For most hosted products like web hosting (for your websites and blogs), the content belongs to the user, and it is up to the user to appoint a digital executor to deal with this asset upon his or death. However, when it comes to the large social media companies such as Facebook, Twitter, Google and Yahoo, each company has its own user agreement, and each provides for different rights to web content upon a user’s death. In most cases, these companies claim ownership of the content that you post. However, this does not prevent you from backing up all posted content in your own offline accounts and then entrusting your digital executor to deal with these assets upon your death.
Facebook has recently changed its policy so that it provides the following options:
1. You can make a request as a close family member or executor to Facebook to memorialize the deceased’s person’s account so that only friends can see the profile and locate it in a Search. The profile will remain active for friends to post memories and condolences.
2. You can make a request as a close family member or executor to Facebook to delete the user account, removing the profile and all associated content from Facebook so that nobody can view it.
3. You can also download the account contents of the deceased, if prior authorization in a will or a court order is present.
So, the question is, what do you do with the web content and digital assets that you actually own and have control over during your lifetime?
Appoint a digital executor and make provision for your digital assets with your Power of Attorney!
Your digital executor and digital attorney can be a different person than your normal executor attorney, as this person will have to have the technological knowhow to manage these assets. In the case of the digital asset that is actually a business asset that is revenue generating, such as a website or blog, you will have to consider appointing a professional to manage these assets, and to have a set fee schedule for this person, if this person is not the beneficiary of the revenue that the asset is generating. If no fee schedule is set, then the provisions of the Trustee Act will apply for setting remuneration for your digital Trustee.
As a general practice, you should keep track of all your digital accounts and passwords, and keep them in a safe place where your executor will know where to find it upon your death. This sensitive information should not be included in the actual terms of your Will, as your Will becomes a public document after it gets probated. It is also a good idea to keep it separate from your will, in a separate memorandum with instructions as to how you want your digital assets dealt with, so that it is easily updatable. The memorandum itself can be referenced in your will.
A really good resource for sample power of attorney and will clauses addressing digital assets can be found here. You can discuss these possible clauses with the legal professional that you choose to have draft your Power of Attorney and Will.