Digital assets often forgotten during estate planning
August 31, 2012 4:00 AM
Stacey Wescott/Chicago Tribune
Economist Mike Moebs, seen here with his dog Missy, revamped his personal and business trusts to include all his digital assets, including the Janis Joplin album "Pearl."
By Becky Yerak Chicago Tribune
CHICAGO -- As Lake Forest, Ill., economist Mike Moebs planned for his marriage last year, his lawyer pressed him for a complete list of assets.
Initially, the frequent-flier miles detailed in his online travel records didn't even cross Mr. Moebs' mind until his family law attorney recognized the value of an asset he largely manages online.
"We gave a lot of thought to the things that I own," said the chief executive of Moebs Services. "I've flown, just on American Airlines, more than 3 million miles, and I have a half a million miles I haven't used."
To prepare for the worst, Mr. Moebs also has created an inventory of user names, passwords and answers to security questions for more than 50 accounts, including online bank and investment records, and billing setups for credit cards and phone bills. His family and close business colleagues can access them if he dies prematurely or is incapacitated.
Indeed, family heirlooms and records aren't what they used to be. Nowadays everything from photos and music to financial statements and tax documents are increasingly likely to be created, stored or accessed via computers, mobile phones or other devices. "I'm revamping my personal and business trusts to include all digital assets and what I want done with them," Mr. Moebs said.
He appears to be far ahead of the curve. Estate planners, lawyers and surveys indicate that few people have begun revising their family and estate plans to keep pace with the new reality of digital assets and online accounts.
In a recent survey by BMO Retirement Institute, more than half of survey respondents age 45 and older with digital property believe it's very or somewhat important to put plans in place for their personal and financial online assets, yet 57 percent haven't made such provisions.
When asked why they've failed to do so, the two most common answers, overwhelmingly, were "didn't think of it" and "I don't think it's necessary."
Chicago lawyer Richard Magnone suggests a reason: "People don't think of digital assets in the same way as tangible assets."
Yet in an increasingly paperless world, not accounting for passwords and other online records could leave already grieving loved ones or business associates unable to access accounts promptly, keep finances current or continue to run a business.
And unless such provisions are made, some email providers might deny family members access to the deceased's accounts, often a doorway to other online assets.
Take Yahoo's terms of service, found under a link on its home page. At nearly the end of its eight pages, there's a reference to "no right of survivorship and non-transferability."
Digital asset case law is scant, but in one of the earliest court fights over such property, a Michigan court ordered Yahoo to turn over the contents of Justin Ellsworth's account in 2005 after the Marine was killed in action and his family sought to get access to his emails.
Several states have passed laws addressing various digital concerns, but the legislation varies greatly. As a result, the Uniform Law Commission, also known as the National Conference of Commissioners on Uniform State Laws, has a committee that is drafting recommendations for state legislatures to enact concerning the rights of a fiduciary to manage and distribute digital assets, copy or delete digital assets and access digital assets.
A fiduciary who is administering an estate or the affairs of an incapacitated individual needs to be able to find, access, value, protect and transfer the individual's online accounts and digital property, the commission said. Because of the need to protect against fraud and identity theft, in recent years it has become increasingly difficult for fiduciaries to get access to digital information promptly and efficiently, the commission said.
In 2007, Indiana declared that electronic documents are to be considered estate property. The law requires a person who electronically stores documents or information of another person who is deceased to give the personal representative of that estate access to or copies of the stored documents or information.
"It's time we realized so many important documents in a person's life are now stored electronically," one Indiana state senator said at the time. "The old-fashioned paper trail has given way to computer files, the rights of which must be protected just the same as you would seek to protect personal property."
The Indiana law prohibits a custodian from destroying or disposing of the documents or information of a deceased person for two years after the custodian receives either a request for access to the electronically stored documents or information from the personal representative, or a court order.
Gerry Beyer, a Texas Tech University law professor who writes about estate-planning issues, said even if a person gives a power of attorney to an agent to access their digital assets, that doesn't mean that the bank, social media site or email service will accept that authority. It might take a court-appointed guardian to get access to the records, he said. One reason: The agent's authority typically ends when the person whose records are being sought dies, he said.