You may be surprised to find that you can’t split your iTunes library or your Kindle books among your heirs just as you would have left record albums or books to kids years ago. Even though the library was acquired at substantial cost, due to licensing agreements it is considered non-transferable even as part of an estate. The days of your son receiving all the Barry Manilow albums and your daughter being saddled with your Lawrence Welk collection are over if you only own your music library in digital form. The only upside to these end-use licensing agreements is that it may eliminate last ditch efforts to settle old scores among siblings if nobody gets anything.

Trusts and Estates law is rapidly evolving to catch up to legal questions surrounding digital legacy and assets after death. Control of digital legacy and disposition of digital assets are issues now working their way through courts on a state-by-state basis.

Digital legacy refers to a person’s on-line presence, generally through social media accounts such as Twitter and Facebook. Social media platforms have begun to add functionality that allow for a person’s heir to close accounts or in the case of Facebook memorialize an account. Simply gaining access to these accounts is often difficult for heirs due to needing passwords and account information.

Digital assets can also include photos, documents, emails and other types of intellectual property. Owners generally have exclusive rights to these assets, often through licensing agreements with the software or website provider. Adding to the complexity, digital assets can include things with more quantifiable monetary value such as PayPal accounts, online businesses, and domain names. As the law continues to change, there may be opportunities to transfer digital assets, such as a video library to a trust, and then name heirs as beneficiaries to the trust.

Planning for transfer of these assets should be included in comprehensive estate planning. In general, this requires making an inventory of accounts, documenting passwords, and then providing this list to your attorney to be included with your will. Fair distribution of digital assets after death requires thoughtful planning. Considering who you want to have these assets and how you want them distributed is important in ensuring that they aren’t lost in the Cloud.

 

Michele Gartland joined Rucci Law Group LLC in early 2015. She practices in the areas of trusts and estates. Michele can be reached at 203-202-9686 or at mgartland@ruccilawgroup.com.