By Alan S. Wernick
Common sense says you should have a will to protect your family and personal assets, including digital assets, when you die.
An increasing number of business assets also reside in digital form, so
plans must be made for what will happen to those digital assets when an
owner, officer or key employee of your business dies.
assets include business financial information (e.g., bank and credit
card accounts), documents, email, social media websites, photographs,
trade secrets and other items not meant for public disclosure such as
employee medical and financial information.
the person who managed these digital assets dies, access most likely
will require at least knowledge of the user name and password and
possibly possession of a working security token or encryption key. If a
single person controls the business, and that person dies, his or her
business, including the digital assets, may not be readily known or
accessible. Those with an interest in the business’ digital assets
(e.g., family members, employees, shareholders, business partners,
creditors, and claimants to intellectual property rights owned or used
by the business) may not even be aware of their existence and
location(s). A business could fail if the appropriate people cannot get
timely access to the business’s digital assets.
states have passed statutes providing executors of a deceased person’s
assets a right to take control of certain digital assets. However, these
statutes are not uniform in language and scope, and currently federal
law does not adequately address these issues.
What steps can your business take to protect itself and its digital assets?
While not exhaustive, the following is a list of proactive steps to consider taking:
Like most things in life and in business, a little planning may go a long way in preserving and protecting a digital legacy.
- Consult with an attorney experienced in estate planning and laws affecting digital assets.
- Consider using a digital
assets estate planning service for a technological solution to handling
digital assets, but consult with a knowledgeable attorney first. The
websites containing your business’s digital assets may stymy your
control over those assets. For instance, the heirs of a key employee may
not be able to access that employee’s social media presence. If heirs
want the decedent’s social media presence to be promptly removed, they
will have to work through the terms and conditions of the social media
website provider. Or, let’s say your company’s website developer
registered your business’s domain in his or her own name. If that person
dies, it could be very difficult to get access to your business’s
website, and if a renewal payment to maintain domain ownership (URL) is
missed, your business’s website domain could be lost.
- Be aware of possible
copyright infringement. For example, if your company’s digital assets
include a collection of e-books whose copyright rights are owned by a
third party, copyright rights may be infringed if multiple copies of an
e-book are created and distributed to multiple heirs or shareholders.
By Alan S. Wernick, Esq., Partner, FisherBroyles, LLP.
©2013 & 2012 ALAN S. WERNICK.