Tweeting from the Grave: The Benefits of Virtual Asset Instruction Letters

 By Erica Opitz

In a world that is increasingly virtual, assets that exist solely on a person’s computer or the internet can be just as important as the tangible assets in a decedent’s estate.  In a 2007 research study,[1] it was determined that internet use in the age group over 71 was a mere 29%, while internet use for Baby Boomers was almost 80%, and for people 30 and younger, internet use exceeded 90%.

Your virtual assets are the “electronic information stored on a computer or through computer-related technology.”[2]  Think about bank account statements and other electronic account statements, your email accounts, social media accounts, or even photographs and home videos that you store on your computer or an internet site.  What happens to this virtual identity upon your death?  At death, each of these accounts and the information stored within them are an asset that must be dealt with by your personal representative and/or trustee.  Arguably, in our virtual world, in order to meet the prudent person standard, personal representatives and trustees must deal with these virtual assets or hire an agent whom is capable of dealing with them.[3]

So how do decedents make it easier for their fiduciaries to handle these virtual assets in the way the decedent would prefer?  A Virtual Asset Instruction Letter allows the decedent to identify all virtual assets by listing all online accounts and other virtual assets and provides web addresses, user names, and passwords as well as instructions on what to do with and who to give access to these assets upon the decedent’s death.  For example, these instructions could specify that the testator would like all of the photographs on his/her computer to be copied and given to multiple beneficiaries.  The Virtual Asset Instruction Letter could also instruct the fiduciary to close an account after a certain amount of time or to delete personal and credit card information that may be stored on different websites.  These types of instructions can help prevent the theft of the decedent’s identity.  This instruction letter could also be used upon the incompetency of an individual by referencing the letter in a power of attorney document.

In order to grant specific authority to a fiduciary to manage the testator’s virtual assets, a provision in the testator’s will, such as the following, could be used.

I may leave with this Will a letter signed by me and prepared in accordance with ________ law designating those certain Virtual Assets (as hereinafter defined) I may own at the time of my death be given to the persons named therein, and I direct my Executor to distribute such property at the time of my death in accordance with the terms and provisions of that letter.  For purposes of this Will, a “Virtual Asset” shall mean any intangible personal property which is stored and/or accessed by any electronic means whatsoever, whether on a personal computer, computer network, portable electronic storage device or media, or through and/or over the internet.

Upon my death, my Executor may take such actions as are reasonably necessary and prudent to locate, administer, transfer, and distribute any Virtual Asset which I may own or otherwise possess rights to at the time of my death.  Without limiting the generality of the foregoing, my Executor is authorized: (a) to hire and reasonably compensate computer or other technical experts to assist my Executor with respect to any Virtual Asset; (b) to change passwords or other means to access and/or control any Virtual Asset; (c) to take such actions as my Executor shall deem necessary to protect the security and continued accessibility of any Virtual Asset; and (d) to communicate with any software licensor, internet service provider, or other third party in connection with the location, administration, transfer, or distribution of any Virtual Asset.

In a day and age where our lives are leaving less and less of a paper trail and are increasingly lived online, it is important to protect our virtual assets upon death.  Not only will a Virtual Asset Instruction Letter ensure that the fiduciary has the information to access necessary accounts making the fiduciary’s job easier, but it will also ensure that the decedent’s intentions are carried out with respect to his/her virtual assets while protecting the virtual identity of the decedent.

[1] Estabrook, Pew Internet & Am. Life Project and Graduate Sch. of Libr. & Info. Science, U. of Ill. At Urbana-Chapman, “Information Searches That Solve Problems: How People Use the Internet, Libraries and Government Agencies When They Need Help” (2007).

[2] Walker, Michael and Victoria Blackly, “Virtual Assets”, 36 Estates, Gifts and Trusts Journal 253 (2011).

[3] See id.

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