Professor Gerry Beyer, who writes the Wills, Trusts, and Estates Prof Blog (which is truly the best estate planning blog), published a new article with law student Kerri Griffin entitled “Estate Planning for Digital Assets.” A link to the Professor’s blog post on the article, with the article’s abstract is here. The full article is available on SSRN here. I believe you have to sign up for an account with SSRN, but I think it’s free.
The article does a good job at setting forth (1) what exactly is a digital asset, (2) how to plan for them, (3) the current policies of various online sites (Facebook, Gmail, etc.) for what happens when a user dies, and (4) the use of “Online Afterlife companies.”
The article quotes my blog post from two years ago, “Estate Planning for Your Digital Life, or Why Legacy Locker is a Big Fat Lawsuit Waiting to Happen.” Beyer’s and Griffin’s article states, “Some of these companies purport to distribute digital assets to beneficiaries. Explain to your clients that these companies cannot do this legally, and that they need a will to transfer assets, no matter what kind. Using these companies to store information to make the probate process easier is fine, but they cannot be used to avoid probate altogether.”
I have not reviewed the terms of service of Legacy Locker or the dozen or so competitors that have sprung up since I wrote the blog post two years ago, so I do not know whether or not the companies have changed their policies to assuage my concerns. The point remains that while it is a great idea to assist the estate in gathering,and maintaining the digital assets, it is problematic if the accounts are passed on to a different person designated in the decedent’s estate planning documents.
I’d like to hear from anyone who has used one of these companies in which the client has passed away, and how the process worked. If you are, or know of such a person, and would be willing to have me interview and write about your experiences, please contact me.