Digital Posterity: Are Your Clients Planning For Immortality?

(Forbes) In 2019, after a diligent talent search, Mega City Films announced that the one and only actor able to play the role in an upcoming Vietnam War film is — wait for it - James Dean! Using CGI, the studio planned to have Dean play the role, virtually. If Dean, who died in 1955, left enough images that are now digital, to act in a new movie, so might you. Whether you wish it or not, you may become immortal through your digital assets; and, you will need to plan accordingly.

The first term to understand is Digital Assets. Your digital assets include any electronic records in which you have rights or interests. This includes records stored on a device, on a website, or rights to digital property such as bitcoin or non-fungible tokens (NFT). Also included are records that either catalog or are the contents of electronic communications, such as emails, text messages, images, music, social media, financial accounts and gaming avatars. What it does not include is any underlying assets, such as a piece of artwork that you have an image stored, other than a digital asset such as Bitcoin or NFTs.

There are four other terms that are important to know: fiduciary, user, custodian and Terms of Service Agreement, or TOSA. A fiduciary not only is a trustee or personal representative but an agent appointed by a durable power of attorney and a guardian. A user is anyone who has access to an account dealing with digital assets. A custodian is anyone who carries, maintains, processes, receives or stores digital assets – including email providers, platforms like Facebook and Linked In, and financial institutions that hold your financial records electronically. Terms of Service Agreements, or TOSA, is what controls the relationship between the custodian and the user, an agreement that everyone agrees to but very often is unread.

 How a user or a fiduciary gets access to digital assets, and how you can prevent others from using personal information, is not clear cut. Access is first controlled by who you designate with the custodian or platform, such as Facebook’s Legacy Contact. Next it is controlled by the TOSA, an agreement which most people ignore and can be changed by the custodian at any time. Finally, the access is determined by your will or trust. For some, this is not sufficient. Others have tried to avoid digital immortality. Robin Williams safeguarded his family’s post-mortem right to publicity by (1) owning property in a state that recognizes post-mortem rights to publicity, (2) creating a corporation that the right can be transferred to, and (3) including a granting clause in their will or trust that gives the corporation the post-mortem right to publicity, including instructions on how the right may or may not be used.         

Here is a checklist for estate planning for your digital assets:

·        Make an inventory of your digital assets, including email and social media accounts, domain name ownership, and online gaming assets,

·        Use the online tools provided by custodians on their platform , such as legacy contact for Facebook, 

·        Back up non-confidential material that can be easily transferred to some other media,

·        For photographs and other low financial value but high emotional value, use services that allow multiple people access, and

·        Provide instructions on how to access digital assets, including user names and passwords, that is available to your fiduciary if needed. 

What is unclear when doing a digital asset estate plan is how to handle the monopolistic power of the platform on which the digital assets are stored and accessed: platforms such as Facebook, Uber and Google to name just a few. Platforms are integral to data ownership. Platforms can monitor, nudge users toward over-participation and over-consumption, sell your information and have an outsize role in shaping the way we are remembered for posterity.

Estate planning may mitigate some of these issues. It may be best, however, to plan to have your digital assets converted into tangible form and have your digital presence “disappear,” rather than have an immortal presence beyond your control or your family’s, long after your death.