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Following up on my last post, The Drum Beat of Estate Planning for Digital Assets, I am posting here some sample language and a listing of digital asset resources online and in print.Sample Language
Here are some digital asset provisions presented in an attempt to focus our thoughts about a generic definition:
(18) To
access, take control of, handle, conduct, continue, distribute, dispose of, or
terminate digital assets and digital accounts.
The term “digital assets” means, but is not limited to, data files
(including but not limited to, emails, documents, images, audio, video, and
similar digital files) that currently exist or may exist as technology develops
or such comparable items as technology develops, stored on digital devices
(including, but not limited to, desktops, laptops, tablets, peripherals,
storage devices, mobile telephones, smartphones, and any similar digital device
that currently exists or may exist as technology develops or such comparable
items as technology develops), regardless of the ownership or location of the
physical device upon which the digital asset is stored. The term “digital accounts” means, but is not
limited to, email accounts, software licenses, social network accounts, social
media accounts, file sharing accounts, financial management accounts, domain
registration accounts, domain name service accounts, web hosting accounts, tax
preparation service accounts, accounting service accounts, data storage or
back-up accounts, online stores, affiliate programs, other online accounts that
currently exist or may exist as technology develops or such comparable items as
technology develops. The powers granted
herein shall include the right to possess, receive and control any password,
security code or other mechanism or device or means by which access to digital
assets or digital accounts is achieved.[1]
. . . . . .
Powers/Other Provision re Digital Assets
To access, take control of, conduct,
continue or terminate my accounts on any website, including, but not limited,
to any social networking site, photo sharing site, blogging, micro-blogging,
e-mail or short message service website, financial, multimedia, personal, or other online account,
or comparable items as technology develops. All such websites may
release my log-on credentials, including username and password, to my [Personal
Representative][Trustee], and the website shall be indemnified and held harmless
by my [estate][trust] for any damages, causes of action or claims that may
result from this disclosure.
[ALTERNATIVE] Fiduciary Access to Digital Assets. The [Personal
Representative][Trustee]may properly access, take control of, handle, conduct,
continue, distribute, dispose of, or terminate the interests in my digital
property unless such actions are contrary to the terms of this [Trust
Agreement][will] or applicable law.
My “digital property” shall include any digital asset and
digital account owned by me, and shall consist of the ownership and management
interests in the digital asset and account. For purposes of this
Article “digital account” means, but is not limited to, an electronic account
containing a digital asset and includes any social networking site, photo sharing site, blogging, micro-blogging
or short message service website, email, financial, multimedia, personal, or other online
account or comparable items as technology develops. “Digital asset”
means any text, images, multimedia information, or personal property stored in
a digital or analog format, whether stored on a server, computer, or other
electronic device, regardless of whether it is remotely stored, which currently
exists or may exist as technology develops, and regardless of the ownership of
the device upon which the digital asset is stored. Digital assets
include, without limitation, any words, characters, codes or contractual rights
necessary to access the digital asset, including any related intellectual
property rights.
In furtherance of the foregoing, the [Trustee][Personal
Representative] is authorized to take any step necessary to terminate [or
continue] any personal Web site operated by me at the time of my death. Any
website or entity controlling or sponsoring a digital asset may release my
log-on credentials, including username and password, to my [Personal
Representative][Trustee], and the website or entity shall be indemnified and
held harmless by my [estate][trust] for any damages, causes of action or claims
that may result from this disclosure.[2]
. . . . . . .
(8) “Digital asset” means information created,
generated, sent, communicated, received, or stored by electronic means on a
digital device or system that delivers digital information. The term includes a
contract right.[3]
. . .
. . .
Digital assets are defined as electronic
content and/or media and the right to use that content or media, including:
email accounts, smartphones, tablets, netbooks and computers, online sales
accounts, online purchasing accounts, online storage accounts, webpages, domain
names, blogs, social network accounts, and intellectual property rights in such
digital assets.[4]
[4] Estate
Planning and Administration with Digital Assets, Karin Praugley, Krasnow
Sanders, LLP, Chicago, Illinois. May
2013 Maryland State Bar. Association
Estate & Trust Law Section Dinner.
Resources
Estate Planning in the Digital Age, Gerry W. Beyer, Texas Tech University School of Law,
April 21, 2013
Estate Planning and
Administration with Digital Assets, Karin Prangley, Krasnow Sanders, LLP,
Chicago, Illinois. May 2013 Maryland
State Bar. Association Estate &
Trust Law Section Dinner.
Estate Administration in Cyberspace - Colin Korzec and Ethan A.
McKittrick
Trusts & Estates, September 2011
Helping Clients Reach Their Great
Digital Beyond -
Evan E. Carroll, John W. Romano and Jean Gordon Carter
Trusts & Estates, September 2011
Virtual Assets - Michael walker and Vitoria Blachly
Tax Management Estates, Gifts &
Trusts Journal 2011, page 253
Digital Death: Estate Planning for Passwords,
Online Accounts, and Digital Property - James D. Lamm - San Francisco, CA -
2012
Digital Passing - A blog authored by James D. Lamm
Pixar for Estate Planners: Animating
Your Practice Through Social Media and Forever Friending Your Clients Digital
Assets - The Do’s, Don’ts and How To’s of New Communication Channels - Robert Kirkland
'Til Death Do Us Part: A Proposal for Handling Digital Assets After
Death, Chelsea Ray,
Real Property, Trust and Estate Law Journal, Winter 2013, Vol.47, No. 3., page
583 et seq.
The Digital Beyond, http://www.thedigitalbeyond.com/
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