Comment on Estate Planning For Digital Assets
When most people envision sorting through the belongings of departed loved ones, they imagine encountering old pictures, journals, letters, and knick-knacks. Due to the proliferation of digital technology, coupled with society’s ever-increasing reliance on the Internet, that picture is rapidly changing. Recent studies indicate that ninety-two percent of Americans have an online presence by the age of two. As of January 2011, there were approximately five billion images on Flickr, hundreds of thousands of videos uploaded on YouTube per day, an endless supply of content from twenty million bloggers, 500 million Facebook users, and approximately two billion tweets per month. In addition to reviewing the journals and letters of deceased loved ones, people are increasingly faced with administering a loved one’s digital assets.
Digital assets include digital images from photographs, electronic bank and investment account statements, e-mail records and associated passwords, and social media accounts such as Facebook, Linked-In, Twitter, and YouTube. The culmination of these digital assets forms a person’s digital estate. Not surprisingly, given the ever-increasing role of digitalization in our daily lives, digital estate planning has become a major issue for estate planners. Still, only five states have laws governing digital estate planning. In order to adequately plan for the digital estates of Americans, the law must accommodate recent technological advancements. The establishment of a uniform set of laws will ensure that the digital assets of Americans are adequately protected.
Part II of this Comment provides a general overview of traditional estate planning. Part III then examines the practicalities of estate planning for digital assets. It will then evaluate the major issues associated with digital estate planning, beginning with the digital asset policies of various companies. Included in this analysis will be the general rationale underlying digital estate planning. Part IV will provide real-life examples of planning for digital assets and its effects on decedents’ families. Part V will outline the state laws that currently provide for digital estate planning, highlighting the need to establish a set of uniform laws for digital assets that are tailored to the current digital age. Part VI explores efforts underway to create such uniform laws. Part VII discusses certain websites that seek to help people plan for their digital estates. Part VIII delves into a discussion of the privacy issues and the implications that are raised by digital estate planning. Part IX will then examine how recent technological advancements, such as cloud computing, may affect planning for digital assets, as well as the policy implications of digital estate planning as a whole. Finally, this Comment concludes by evaluating the policy implications underlying the creation of a uniform digital estate planning law.