Planning for the Intangibles

Copyright 2006 Ronald Hudkins
Every state has statutes and mechanisms in place that deal with disposal of tangible assets whether the deceased had a will or not. Families might fight over who gets the house, the cars, the stocks and the cash, but there is generally no question about where such property is located.
On the other hand, many of the questions surrounding intangible digital assets are just beginning to be asked, much less answered. Estate planning in the information age raises a whole new set of issues that just didn’t exist even as few as ten years ago.
When a person dies, for example, who inherits the computer files, the web pages, blogs and emails? More complicated yet, how are online bank accounts, stock holdings that exist entirely in digital media, or the rights to an exclusively online business to be handled? The proliferation of online businesses and the world’s propensity for doing paperless business means that digital holdings very often have considerable monetary value. What if nobody knows your passwords or your various usernames? Do your digital assets just disappear into the ether? Can your online business be seized and sold to pay your creditors?
The dynamic nature of Internet transactions makes their inclusion in a will eminently impractical. User names and passwords change, new businesses are created, new stocks are e-traded, and new email accounts come into being. Changing a will, or adding a codicil, every time your online dealings change is not at all feasible.
Even though the law governing digital assets is unclear, largely because it hasn’t yet been written, there are ways to protect those assets and make sure your heirs are able to locate and use them.
First, keep a master list of all your online dealings, complete with urls, user names and passwords. The list should include items like domain names, where they are registered, and when they need to be renewed to keep the business name and Internet location. Put this particular information on paper, update it every time something new is added or something old deleted, and keep it in a safe place with your other important business papers, preferably in a safety container.
Make sure your attorney or your estate executor is aware of the list, even if you don’t want it opened until after your death. Instruct your executor or attorney as to when the list is to become available to your heirs – for example in the case of serious illness in the event that someone needs to take care of online business transactions in your stead. Such instructions may or may not be legally binding, but chances are your instructions will be followed, as a matter of moral obligation.
If you have a prosperous online business, online bank accounts, e-trade accounts, or other valuable digital assets, those need to be figured into your estate planning. Otherwise, your heirs may be stuck with a messy situation and many unexpected expenses, or even legal challenges to deal with – problems that your estate planning was initially designed to protect against.