Digital Estate Planning

The Resource for Adding Digital Assets to Estate Plans

Digital Estate Planning header image 1

SXSW 2011: Panel Picker Now Open

August 16th, 2010 · Digital Death, Digital Estate Planning, News / Articles

I am happy to announce that I am part of a terrific panel for a proposed session at South By Southwest (SXSW) 2011.  A brief description of our topic is available on the Panel Picker voting page.  Please stop by the Panel Picker page and vote for our panel topic, “You’re Dead, Your Data Isn’t: What Happens Now?”

The panel organizer, John Romano, (The Digital Beyond) has a great post, SXSW 2011: You’re Dead, Your Data Isn’t: What Happens Now?, providing additional information and the bios of the panelist, including myself.

All you have to do to help us secure a spot is to register and click the thumbs up icon.  Please feel free to also leave a comment at the Panel Picker page as your feedback is always appreciated.

→ No CommentsTags:··

NY Times Article on Facebook Death

July 23rd, 2010 · Digital Death, News / Articles

The front page of The New York Times on Sunday, July 18th, contained an article titled, As Older Users Die, Ghosts Reach Out, which shows that Facebook acknowledges the digital death problem with its 500 million plus membership.  Entrustet followed the article with a blog post updating the number of deaths among Facebook users this year.  Entrustet has calculated that 375,000 U.S. Facebook users will die this year.  That number will continue to rise as total membership increases and the older demographic continues to be a large growth area for Facebook.

So what can you do with your Facebook account when you die?  Well, it depends.  According to Facebook’s FAQs presumably anyone can submit a Report of a Deceased Person’s Profile, or an immediate family member may request that the deceased user’s profile be removed.  There are not as many options as I would personally like to see.  Plus I’m not keen on the idea of anyone being able to report my death.

The NY Times articles highlights a very important issue and one that Digitalestateplanning.com was specifically designed to discuss.  I understand many people believe that the large Internet Service Providers (ISPs) do not care about digital death issues.  However, I am optimistic that change is possible since we have seen movement and a growing awareness of the issues in the last two years.  We’ll just have to see to what degree we can effect change by continuing to bring digital death issues to the forefront.

→ 3 CommentsTags:··

Content Shared Under Creative Commons Licenses

May 27th, 2010 · Categories of Digital Assets, Digital Estate Planning

This post originated as a reply to a comment by R. Brian Burkhardt from the Your Funeral Guy blog to my post Digital Assets:  Property or Licenses? Mr. Burkhardt’s comment is timely as a group of us discussed the issue of Creative Commons licenses at Digital Death Day last Thursday.  As I prepared my reply I quickly realized that the answer had more layers than I could comfortably cover in a reply comment.  So I decided to spin it off into a dedicated blog post.

There are two aspects of sharing content under a Creative Commons license that are important to holders of digital assets: 1.  The nature and character of the underlying copyrighted work and 2.  the Creative Commons license itself.  The copyrighted work may be in digital form by way of blog posts, website content, ect; therefore, it would be a digital asset.  The Creative Commons license, itself, is not a digital asset to the licensor (the content creator), but it may be of value to the licensee (individual or entity exercising rights under Creative Commons license) may serve as the foundation for the creation of licensee’s digital asset.  Stated in the alternative, the Creative Commons license is a restriction on the licensor and a benefit to the licensee.

The next step is answering the questions: “What do we own?” and “How can we distribute, direct or dispose of what we own?”  There is no doubt that a content creator sharing under a Creative License owns the underlying content / work, but what effect does the license have on those property rights?

To answer this question we have to first understand the details of a Creative Commons license.  According to the Creative Commons’ FAQs 1.4 “Creative Commons licenses attach to the work and authorize everyone who comes in contact with the work to use it consistent with the license” (emphasis added). This means that not only is the original licensee covered but so to is any person (“second-level licensee”) that gets a copy of the work from the licensee.  In that instance the second-level licensee and the licensor are treated to have entered into a separate license agreement.

The second important aspect of the Creative Commons license is that, once granted, it “is perpetual (for the duration of the applicable copyright in the Work)” (The quoted language is from Section 7(b) of the Creative Commons Public License).  The perpetual term of the license is subject to the licensee’s ongoing compliance with the license.  The licensor does not have the right to unilaterally terminate or revoke the license.  Therefore, the content shared under a Creative Commons license during your lifetime is still subject to that license following your death.  Once it is licensed and shared, the licensor cannot stop someone from using it.  The licensor can choose to stop providing content under the license at any time, but that decision is effective going forward, not in reverse.  The content, itself, is still a digital asset that can be left to heirs, but the heirs inherit the digital asset subject to rights previously granted to the licensee.

This hypothetical illustrates my conclusion:

Facts: Content Creator (“Creat0r”) starts a blog on January 1, 2010 and agrees to share his content under the Creative Commons – Attribution Share Alike – license.  Given the popularity of his blog many fellow bloggers, including Content Sharer (‘Sharer’) share, reference and link to his posts with appropriate attribution.  On June 1, 2010, Creator dies.  He leaves his digital assets to his wife, Content Heir (“Heir”) and thanks to a lightning fast estate administration / probate, Heir fully inherits Creator’s digital assets on June 2, 2010.  Heir immediately pulls the Creative Commons license off of the blog and attempts to restrict and/or eliminate any prior use of  Creator’s content.  On June 15, 2010, Content Squatter (“Squatter”) publishes a post on his blog using Creator’s content under now revoked Creative Commons license.

Conclusion: Heir cannot terminate the license as it relates to sharing of content prior to Creator’s death on June 1, 2010.  The sharing of content authorized by Content Creator during his life should be allowed to continue, perpetually “for the duration of the applicable copyright in the Work.”  However, Content Heir can decide to restrict the sharing of content once she inherits the property following Content Creator’s date of death (June 1, 2010).  So Sharer’s, February 2, 2010 post using Creator’s shared content with appropriate attribution is unaffected by Creator’s death and the subsequent revocation of the Creative Common’s license.  However, Squatter’s June 15, 2010 post is not subject to the same license as Heir stopped providing content under the Creative Content license on June 2, 2010.  Therefore, Squatters ability to use Creator’s content is restricted.

As is often the case in the digital estate planning realm there is not an easy answer to the question.  However, in drilling down to the core of the issue, in this case the property vs. license debate, we can build the foundation in the law and reach logical conclusions from there.  I am very interested to hear everyone’s thought, feedback, questions, conclusions on this topic.

→ 4 CommentsTags:······

Digital Assets: Property or Licenses?

May 26th, 2010 · Categories of Digital Assets, Digital Estate Planning

The foundational element to estate planning for digital assets is determining the character of the interest that the client wishes to distribute or dispose of upon his or her death.  This is particularly important in the context of digital assets because the diversity of the digital asset category is expansive.  In addition, the term “asset” when used in conjunction with “digital” does not conform to the traditional property law system.

The Digital Death industry has collectively decided to use the term “digital assets” to refer to a broad category of accounts, memberships, licenses, property and legacy items.  Since the law and a client’s rights vary depending on the character of the interest, it is essential that practitioners not only identify and categorize digital assets, but they must understand if and how a client can transfer or dispose of those digital assets.

Given both the significance and breadth of the property vs. license discussion it would be naive to think I could do it justice in one, albeit lengthy, post.  Therefore, I have decided to start a series dedicated to answering the following questions:  What, if anything, do we ‘own’ in regards to digital assets? and What about everything else?

The answers and conclusions from this series discussion the categories of digital assets will feed directly into the estate planning for digital assets discussion where I hope to answer the following questions:  If a client can transfer or dispose of digital assets following his or her death or incapacitation? and How can practitioners ensure that the client’s wishes in regards to the transfer or disposal of digital assets is legally binding and enforceable?

In a developing area of law it is not surprising to see more questions than answers so I am not discouraged by this.  Instead I view it as an opportunity to develop a solution for an important planning issue that will only continue to grow in significance as technology and our collective Internet presence advance.  I will file the series in the “Categories of Digital Assets” folder so we can centralize the discussion.

→ 7 CommentsTags:·····

Digital Death Day 2010

May 24th, 2010 · Digital Afterlife, Digital Death, Digital Estate Planning

As I write this post I’m settling back into my office after the trip to San Francisco / Mountain View for Digital Death Day 2010 (DDD2010).  DDD2010 was sponsored by Entrustet, Legacy Locker, and Data Inherit.  This landmark event brought together a collection of people involved directly with the creation, management, protection, and transfer of digital assets.  The event was organized by Kaliya Hamlin (www.identitywomen.net) and her team.  They did an outstanding overall job with the event.  I believe this maiden Digital Death Day voyage will represent a significant, historical event when we look back on it in the coming years.

One of the attendees and participants, Evan Carroll, (www.thedigitalbeyond.com) has provided a nice recap of the event in his post Digital Death Day:  Good People.  I couldn’t agree more with Evan’s recap and specifically the quality of the participants.  Digital Death Day was structured as an unconference, which, according to Wikipedia is “a facilitated, participant-driven conference centered on a theme or purpose.”  That is a fair description from my perspective.  The session began with all of the participants coming together for a round of introductions.  The participants then had the opportunity to offer sessions of interest throughout the remainder of the day.  So we as a group set the agenda and facilitated all of the discussions.  I intentionally refer to the sessions as discussions because this wasn’t a typical conference where one person speaks/lectures and the attendees listen.  Instead the sessions were full of collaboration and good spirited debate.  In the end many questions were answered, many questions were not, and many more questions were discovered.

Throughout the day we spent a great deal of time discussing the foundational, legal issues in regards to digital assets.  Primary these discussions focused on the definitions of property.  Unfortunately, as I’ve mentioned before, the reason why digital assets raise such important estate planning issues is that the traditional definitions of property do not fully address technology and Internet related issues.  The basic question of what is a digital asset is not easily answered as we sit here today.  That fact compounds the estate planning issues because we first need to know ‘what we own’ before we can develop an estate plan that distributes or disposes of ‘what we own.’

It was a pleasure to meet everyone at Digital Death Day.  It was a great group of people that are ready and willing to effect change in the area of digital estate planning and the digital afterlife.  I came back from DDD2010 with a number of ideas and topics to explore in the coming weeks.  Please check back, subscribe, and/or follow me on Twitter to keep up with the developments.  As always, your feedback is important and welcomed at any time.

→ 1 CommentTags:··

Overview of Digital Assets: Defining Digital Assets for the Legal Community

May 14th, 2010 · Digital Asset Basics

Before we can delve into the estate planning considerations for digital assets we must first answer a very important question:  What are digital assets?  To answer that question I hope to someday be able to refer to a common legal reference such as Black’s Law Dictionary or to the statutes in any U.S. state.  For now we are pioneers in the area so we do not have the benefit of a specific legal definition.  We do however have a combination of common sense and traditional dictionaries/definitions available to us.  Let’s start with the definition of each term according to Merriam-Webster Online Dictionary:

Digital

~adjective

of, relating to, or being data in the form of especially binary digits

Asset

~noun

1 plural a : the property of a deceased person subject by law to the payment of his or her debts and legacies b : the entire property of a person, association, corporation, or estate applicable or subject to the payment of debt;

A combination and simplification of the above definitions gives up the following:

Digital Asset

~noun

data in the form of especially binary digits owned by a deceased person subject by law to the payment of his or her debts and legacies

This serves as a nice technical definition for digital assets but it does not completely clear up the issue because the phrase “data in the form of especially binary digits” is still cumbersome at best.  I tried to narrow it down and translate it into plain English and  settled on the following practical definition of a digital asset:

Digital Asset

~noun

Any file on your computer in a storage drive or website and any online account or membership.

Examples of files include Microsoft Word, Excel or PowerPoint documents, digital photos and videos, and digital music. Online accounts and memberships can include email accounts, social networking profiles, online digital photo accounts, banking and investment accounts, domain names and websites you own, online media subscriptions – practically anything with a unique username/password combination.

So now that we have a better understand of what constitutes a digital asset, we can turn our attention to why this unique category of property requires special attention.  To do this, I will first have to provide a quick overview of property and probate law.

In general property is divided into two broad categories:  Real and Personal.  Real property is defined as land and all the things that are attached to it.  Personal property is defined as anything that is not real property and personal property is anything that isn’t nailed down, dug into or built onto the land.  Personal property is further divided two categories:  tangible (car, furniture, jewelry, art, clothing, appliances) and intangible (stocks, bonds, patents, trademarks, copyrights).  The central difference is that you can touch, move, or feel tangible property, while you cannot touch, move or feel intangible property.

If you were looking for the perfect category to drop digital assets into I am not confident that you will find one in the property overview above.  Therein lies the problem.  Digital assets more appropriately fall within the intangible property category as long as those assets remain in digital form on one’s computer or on the Internet.  However, if a person’s digital photos or email is printed we quickly transition into the tangible property world because we can now touch, move or feel the photo or letter.

The distinction between tangible and intangible personal property is important because it ultimately drives the probate process.  For instance, in Wisconsin a testator can have a list signed and dated after the execution of his or her Will in which they leave specific items of tangible personal property to specific heirs.  There is no such provision for intangible assets.  As such a testator must specifically direct the management and disposition of intangible assets in the Will or through contractual designation, such as transfer on death or payable on death designations or beneficiary designations.  This requirement limits a person’s ability to control the management and distribution of their assets without first consulting with an attorney to update their estate planning documents.

→ 1 CommentTags:··

Introducing Digital Estate Planning

May 5th, 2010 · Digital Asset Basics

This is the maiden post for DigitalEstatePlanning.com so I would be remiss not to provide you with my background and the reasons for starting this blog.

My name is Nathan Dosch and I’m an estate planning and tax attorney with Neider & Boucher in Madison, Wisconsin.  You can check out my complete bio via the About Me link above, but I’ve been blogging at the Wisconsin Estate and Tax Law Blog for 3 years.

In my practice I primarily assist individuals, couples and business owners in preparing their estate plans (Wills, Trusts, Powers of Attorney, etc.) and business succession plans.  This area of practice requires familiarity with probate, estate and property law.  Historically the law has developed to the extent that various classes of property are well-defined and are generally accepted in estate plans. These property classes include real estate, tangible personal property, and intangible property, such as stocks, bonds, patents, trademarks and others.  In recent years, a new property category called digital assets or digital personal property has surfaced as a byproduct of the Internet’s expansive growth.  As is often the case, the law has lagged behind technology, so dealing with digital assets from an estate planning perspective has been by and large nonexistent.

Over the last few years I had an appreciation for the void between traditional property and probate laws and this new concept of digital assets but the co-founders of Entrustet, Nathan Lustig and Jesse Davis introduced me to the practical implications of this void.  I have been fortunate enough to work closely with Entrustet as they developed and launched their online service that helps consumers as well as estate planning attorney deal with the implications of digital assets and estate planning.

During my time working with the Entrustet team, I’ve become extremely well versed in the issues and laws surrounding digital estate planning.  I decided to write this blog to help share my knowledge with other attorneys because I believe that most estate planning attorneys will need to create an estate plan for a client that includes digital assets in the near future.

Although I have and continue to work with the Entrustet team, this blog is not a place for me to tout Entrustet’s services and the Entrustet team will not be posting here.  My hope is to provide a valuable and continually updated resource to both estate planning professionals and digital asset owners.  Please consider subscribing to this blog’s feed.  Also, please follow me on Twitter and Facebook.  I don’t want this blog to be a one way street.  I am happy to answer any questions and invite collaboration and guest posts by interested attorneys.  If you have any questions or are interested in learning more, please contact me using the form on this website.

→ No CommentsTags:····

Get Adobe Flash playerPlugin by wpburn.com wordpress themes