You Can’t Pass Down Your Pikachu: The Difference Between Subscription-Based Licenses and Property Rights in Planning Your Digital Estate
Since the stock-market-shattering debut of Pokémon Go on the smart phone scene just last month, players engrossed in the game’s “augmented reality” have spent billions of dollars and even risked their lives trying to “catch” these virtual creatures with imaginary Poké Balls.
Fortunately for Pikachu, the fact that you don’t actually own your purchased digital media means that, even if he finds himself “forever captured” in the digi-realm upon your passing, he’ll have plenty of options for virtual entertainment, like all your iTunes downloads and Kindle ebooks.
But what about your physical friends and family? Do you have any digital assets to leave to these earthly survivors?
Unlike with digital purchases, user-generated content hosted by “custodian” sites like Facebook, Gmail and Instagram do constitute digital assets and thus contribute to your digital estate. This means you have the right to transfer such media to your beneficiaries, heirs or devisees at death.
Apart from your photos, videos and social media posts, however, digital assets with real economic value are also reachable by your estate. These include online banking and investment accounts, web domains, digital currencies (such as Bitcoin), electronically-stored financial information, and income-generating original content (such as a blog or vlog).
Even with the right to access and manage your digital property, though, your fiduciary (i.e., agent legally authorized to handle your affairs on your behalf, such as a trustee or personal representative) may encounter difficulty obtaining it due to privacy concerns on the part of hosting sites. With the increasing prevalence of virtual assets, however, state legislatures are beginning to pass laws facilitating access while helping shield custodian sites from liability for sharing your otherwise confidential information with third parties.
For example, the Fiduciary Access to Digital Assets Act now making its way across the country enables owners of digital content to specify in their wills and trusts how custodian sites are to dispose of such property upon the former’s death or incapacity. Absent such a directive, however, fiduciaries of the deceased (or incapacitated) must follow terms set forth by the sites, themselves, which could mean having to obtain a court order to access your digital assets. Where neither the site nor the owner addresses the issue, a default rule grants limited access to a “catalogue” of the decedent’s online communications” to enable discovery of “any bank or other financial accounts.”
Due to the complications family and friends can face when a loved one fails to make her wishes known during her lifetime, it is clear that some thoughtful estate planning can help ensure that your digital assets make it to the next generation. To communicate these desires most effectively, consider visiting with a qualified estate-planning attorney. After all, despite the possible cuteness differential, it is likely loved ones will cherish your digital afterlife even more than that of your Pikachu.
Nakisa Azizi is a guest columnist. She is a licensed Arizona attorney specializing in estate planning and business law.