Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

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Wednesday, September 12, 2012

Article on Digital Asset Legislation

Images-5Tyler G. Tarney (Capital University Law School, J.D. 2012) recently published his article entitled A Call For Legislation to Permit The Transfer of Digital Assets at Death, 40 Cap. U. L. Rev. 773 (2012).  The introduction the article is below: 

 

“A quiet revolution is quickly coming to the probate and estate planning world.” The Internet has fundamentally changed the way society communicates and expresses itself, and there is now tremendous value lying in one's e-mails, social networking accounts, blogs, and other digital assets. Younger generations that embraced the Internet and created this value are getting older and confronting death. Unfortunately, the same technologies that are driving the digital age are creating new legal problems for estate planners. 
As society's online presence becomes increasingly complex, protection of online assets at death is an emerging concern. “[F]amily members, estate planning attorneys, and . . . service providers are increasingly grappling with what happens to [individuals'] digital information when [they] die.” “In one form or another, the right to pass on property to one's family . . . has been part of the Anglo-American legal system since feudal times.” Despite this growing value of digital assets, given the current state of the law, “[s]imply leaving cyber property in a will . . . is often going to be inadequate.”
The traditional understanding to keep unique, complex passwords for each account and to change them frequently becomes counterproductive and difficult to manage as the number of accounts rapidly increases. When heirs desire access but are not in possession of log-in information, service providers are “in exclusive control of the account content.” Without a remedy, heirs are forced to consult the provisions in the terms of use regarding the disposition of the account holder's account contents at death. However, the terms drafted by service providers are highly restrictive to maintain the privacy of their users.
Considering the current complexities in retrieving digital assets at death, legislation mandating transferability and timely compliance by service providers upon legally-recognized authorization of the decedent is necessary. Part II of this article underlines the value in digital assets and the policy concerns motivating service providers in drafting these restrictive terms, making the disposition of these assets at death so complex. Part III examines the solutions offered by state statutes, service providers, and the current market, and explains how these solutions are insufficient and shortsighted. Ultimately, Part IV explains why a uniform law permitting the transferability of digital assets upon legally-recognized intent is advantageous and how it resolves the competing concerns of account users and service providers.

 

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