Alert: Estate Planning for Digital Assets

Do you have a personal laptop computer, iPad, iPhone or other personal electronic device requiring an access password?  Who, besides you, has that information?  If something happens to you, how will your information be retrieved? 

If you maintain active online bank, brokerage, e-mail, social media, and game accounts that require username, password or other information for access, who knows what these accounts are and how to access them if you can't? 

While technology can simplify our lives while we’re living, it can complicate things significantly when we become ill, incapacitated, or die.  The applicable laws are anything but settled.  That is why it is essential to plan for and document your wishes about access to, and disposition of, your digital assets. 

If you want to be assured that your choices about who has access to and control of your digital assets in the event of your illness, disability, or death are honored, you need to take the following steps: 

    • Identify your digital assets. “Digital assets” generally refers to all of your digital property and electronic communications, including: any kind of digital file, such as documents, images, audio, video, multimedia information, online account or personal property whether stored on a server, computer or other electronic device (e.g., desktop, laptop computer, tablet, storage device, mobile telephone, smartphone, etc.), or “in the cloud.” Examples of these include PayPal and eBay storefronts; music or movie sites such as Apple, Amazon or Google Play; and digital wallets such as Starbucks.
    • Create a digital asset inventory. Include all of your devices and accounts, numbers, usernames, passwords; PINs, security questions and answers; information about whether the accounts have monetary value; and any special instructions. For security purposes, you may wish to keep or store some inventory information separately. For example, make a list of accounts and numbers, and a separate, related list of the access information for those accounts. As passwords and electronic accounts will change from time to time, keep your inventory current and review it annually, at the very least.

      When your digital asset inventory is complete, safeguard the information. Perhaps you are comfortable entrusting the inventory to a family member or prospective fiduciary. If your information is more complex, or involves business assets, you may want to explore a secure online password manager, such as Dashlane, LastPass, PasswordBox, SecureSafe, etc.* Some services provide secure sharing and access by designated “emergency contacts.”

    • Document your wishes concerning access to your digital assets. The rights of your attorney-in-fact (the agent designated under a power of attorney), conservator, executor or trustee to access, manage and dispose of your digital assets are not entirely clear. Although the executor or administrator of a Connecticut decedent’s estate has legal authority to access or obtain copies of a decedent’s “electronic mail account,” multiple digital options that have emerged since the statute went into effect a decade ago.

      Most online accounts are contractual, license arrangements that control who (other than you) may access your account, and under what circumstances. There are as many different policies as there are online account providers. For example, Facebook does not allow anyone other than a designated “legacy contact” (designated through the user’s security settings) to access a deceased user’s Facebook page – even if that person has the password to do so. Given the uncertainties under current law, your estate planning documents should ensure that only the people you choose have access to your digital information, and that your choice is documented in your power of attorney, Will and trust agreement, as appropriate.

    • Document your wishes concerning the disposition of your digital assets. When you are no longer able to manage your digital assets should the file or account be accessible to family and friends, particularly if there is personal material (e.g., photos, writings) associated with the account? Should the account be cancelled?

      Some forms of digital assets have monetary value (e.g., online bank or brokerage accounts) which can be transferred when accessed. Others hold inherent financial value that can be exchanged or transferred, e.g., a domain name, iTunes account or PayPal credit balance. Other assets may exist only in digital form, for example, photographs, recipes and manuscripts, and have tremendous sentimental or family historical value.

      A traditional Will or revocable trust agreement may be options for directing the disposition of many digital assets, particularly those with monetary value. Another tool is a “digital asset trust” which is created to hold title to the electronic account and govern who may have access to what information, and when.

As the rate of electronic growth significantly outpaces the related law, it is imperative that you take the necessary steps to provide access to your digital assets, if necessary, and provide directions to give effect to your wishes with respect to your digital assets. For further information on this topic, and others related to “digital afterlife,” you may enjoy a visit to www.thedigitalbeyond.com.

*NOTE: Pullman & Comley, LLC is not recommending any of these companies and no endorsement should be implied because any company has, or has not, been mentioned in this article.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

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Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

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Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

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We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

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How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

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Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

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Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
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You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

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California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

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There are different types of cookies and other technologies used our Website, notably:

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JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

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Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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