The Fate of Your Digital Assets

A short article in the AARP Bulletin for June 2013, Vol. 54, No. 5, caught my attention with a title, "Guarding the Fate of Your Digital Assets." (Yes, I do take advantage of the discouts for my advanced age!) Some of the time the AARP stuff is worthwhile, but in this case the article is misleading and extremely inaccurate. The advice given, in my opinion, is exactly wrong.

As genealogists, we often have huge amounts of accumulated data, computer files, scanned documents and images and other items that we would like to adequately dispose of upon our death so they are not lost.

The issue is what happens to all the stuff you have online when you die? I find that more and more of the genealogists are "taking advantage of cloud computing" and storing their data files online. In my opinion, recently expressed in a post, there will be a rapid and steady movement towards a dependance on online storage of data and documents. So, what happens to all that when you die?

Let me give an example of a bank safety deposit box. One of the commonly accepted ways to safeguard valuables in the past, has been to store them in a bank safety deposit box. This type of secure storage seem like a really good idea, until you die. At least here in Arizona, if the bank finds out you have died, they will deny access to the safety deposit box to anyone except a duly appointed representative or administrator (here in Arizona called the Personal Representative) of the estate. Now, the problem. Many people today are trying to avoid the court involvement in their estate with a probate and have their assets in a trust or other type of estate planning device. The idea here is to avoid the cost of probating the estate in court and keeping the transfer of property out of the public eye.

Now, this problem only exists for people who have some assets for their family to worry about after their death. In the past, smaller estates, such as those with just a house and maybe a car, could avoid the whole process altogether by having the house in joint tenancy or the equivalent and titling the car in more than one name. But with the advent of online digital assets this whole scenario changes. People with few, if any, physical assets may have a huge online estate, if you will.

Back to the AARP article. The article suggests using Google's Inactive Account Manager "to be sure it all goes where you want it to go." This whole idea suggests that you can determine the disposition of your online assets (genealogy files, documents, photos, etc.) by entering into an agreement with a third party such as Google. Not necessarily true. In past posts, I have pointed out that testamentary disposition of your "estate" online or otherwise can be tricking because of the formal requirements of establishing a will. Recognition of the Google type of estate distribution is entirely lacking in most of the states in the U.S. and certainly would have strange consequences in most of the other countries of the world. The question is whether creating an Inactive Account Manager would fit within the parameters established by the state statutes for creating a testamentary disposition i.e. a will or a testamentary trust.

But more importantly, the implication of the article is that entering into this type of agreement somehow solves the problem of the disposition of these online assets upon your death. This is not true. I have looked at Google's Inactive Account Manager and it is nothing more than a way to notify someone if your Google accounts become inactive. There is nothing in this type of notification that could, in any way, affect who gets the data and what happens to it.

Let's suppose John Doe, a diligent genealogist, dies in Arizona (or where ever). Upon his death, everything he owns passes to his "estate." In most states, the value of the estate determines whether or not formal court probate (process of distributing the estate to the heirs) needs to take place. As I noted, very small estates are ignored by the system. So what is the value of Doe's online genealogy files? That is the question. How may of you out there know of situation where the family was fighting over the family photographs after a death? So how much is your online genealogy worth?

The way the AARP article was written, your estate would be automatically on its way to court to have the value of the genealogy determined before there could be a disposition of the files. So the careful estate planning of the deceased to avoid going to court may end up being entirely frustrated by using the Google Inactive Account Manager.

The reason this is a problem is that any property that is "titled" needs a post-death agent such as an estate administrator or executor to properly convey title. In essence Google is proposing that these online files are "titled" in the user. If this is the case, then in many cases, the court will have to decide if there is a duly authorized agent and then decide the disposition of the files.

Unless you have been involved in an estate conflict, you can have no idea how complicated this is. I will likely return to this topic.