Estate Planning for Digital Assets

Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law) and Kerri Griffin (2011 J.D. Candidate, Texas Tech University School of Law) recently published their article entitled Estate Planning for Digital Assets, Est. Plan. Dev. for Tex. Prof., Apr. 2011, at 1. The abstract available on SSRN is below:

For hundreds of years, we have viewed property as falling into two major categories – personal property and real property. Personal property is traditionally further divided into tangible personal property, meaning items you can see or hold, and intangible personal property, meaning items that lack physicality. Recently, a new subdivision of personal property has emerged that many label as “digital assets.” There is no real consensus about the property category in which digital assets belong. Some say they are intellectual property, some say they are intangible property, and others say they can easily be transformed from one form of property to another with the click of a “print” button. In actuality, some accounts that we consider “assets” are simply just licenses to use a website’s service that generally expire upon death.

While estate planners have perfected techniques used to transfer types of property that have been around for a long time, most estate planners have not figured out how to address the disposition of digital assets. It is important to understand digital assets and to incorporate the disposition of them into clients’ estate plans.

This article aims to educate estate planning professionals on the importance of planning for the disposition of digital assets as well as how to do so. In addition, this article provides an overview of current deceased-user policies of common online accounts and services offered by online afterlife companies to aid in the planning process.