acebook only arrived on the scene in 2004. It seems to many, especially the young, as though it has been here forever, but it has not. Our children simply don’t re- member a nondigital life. So much has changed in the last two decades that we find ourselves trekking on unmarked paths in a new frontier. We now — and forevermore — will live in a digital world. Those who are disconnected have become di- nosaurs, dying out slowly over time. Change is forced upon us. Most people have no understanding of the digital property they own, and even less understanding of what may happen to those assets if they die or become incapacitated. iStock The Definition of Digital Assets Wouldn’t it be nice if we had a standard definition? Dream on. Even if we did, technology would continue to morph and our definition would be outdated. We can’t even seem to agree on whether to call it “digital as- sets” or “digital property” — for the moment, the terms seem to be used interchangeably. Digital property is everywhere and what it constitutes is broad, including: email; texts; social media posts; blogs; online accounts (including real life value of some assets in virtual worlds such as Second Life); videos; passwords and IDs to access sites; data you may have on shopping, financial and other sites; electronic docu- ments (think of your old tax returns as an example); online back- ups; photo collections; airline miles; hotel rewards; books;, movie scripts and so on.. To the dismay of many, it does not include your iTunes music collection, e-book reader books or movies you downloaded because you purchase only a license; you don’t own the music, books or movies. The licenses typically expire when you die — and sometimes much sooner. If you think “pish, posh, what can these things be worth?” bear in mind that 10 domain names have sold for $7-$35 million in the last 11 years. And that is only one kind of digital property! Consider how many millions are now held as digital currency in Bitcoin wallets. Good luck discovering those if someone is trying to hide them. It is beyond the scope of this article to tell you how each site or online provider will handle your data in the event of your death or incapacity. You actually have to read the terms of service (“ToS”) for each site to see whether an executor may have access to the data, may memorialize your site, may remove it, or whether your site will terminate automatically after a given period of inac- tivity, etc. Even where an executor may be allowed some power with relation to digital property, a court order may be required under the terms of service, which can make managing the assets a costly and lengthy process. Recently, online providers have begun developing online tools to allow you to express your wishes — think of it as a digital will – and these generally take priority over the ToS. Google’s Inactive Account Manager is a good example. By completing the required form, you have control over what happens to your ac- count. Facebook will memorialize your account but immediate family can request removal of the site. The user can also define a Legacy Contact to manage a memorialized site and authorize the contact to download what you’ve shared on Facebook. Microsoft has a Next of Kin process for email accounts — if you provide an official death certificate, or proof of incapaci- tation, and proof that you are the next of kin or executor, you can delete and close accounts or have their contents shipped to you on DVD. Twitter will delete an account only after receiving proof of a user’s death. Basically, an online search for “What hap- pens to my (insert name) account when I die?” will give you links to online help. Estate Planning and the Challenges of Digital Assets Estate lawyers have only begun to think about planning for the disposition of a client’s personal and business digital property in the last few years. We still lecture to lawyer audiences who remain fundamentally clueless about how to handle digital assets. Digital property is often hidden from view. A client’s loved ones may have no idea what property exists or where to find it. The best advice we can give clients is to keep a detailed list of their digital property with access information — user name, pass- word, PIN, security question and answer, and who has access or at least how to access an “asset vault” of all of the required login data. This digital inventory will be useful to clients who can then prepare a digital property memorandum for their estate attorneys. Leonard Bernstein, the famous composer, died with his auto- biography (“Blue Ink”), in a password-protected file so secure that more than a decade later it still has not been accessed. Many of us opt out of paper financial statements but without them, executors may not know of assets — or we may not know of bills that need to be paid. We recommend keeping data in an encrypted electronic file for security and identity theft reasons, but making sure that someone you trust has the credentials neces- sary to get to that document, which must be continually updated. A password protected Word document or Excel spreadsheet is a fairly simple and common solution. A password will encrypt the contents, but make sure you use a strong password. We continue to hear stories of a husband or wife who handles paying all the bills but doesn’t share the online banking creden- tials with their spouse. Depending on the laws of your state, they We recommend keeping data in an encrypted electronic file for security and identity theft reasons, but making sure that someone you trust has the credentials necessary to get to that document ... MAY 2016 • OREGON STATE BAR BULLETIN 23