A law went into effect Sept. 1 in Texas that allows estate executors, guardians and trustees to gain access to the digital assets of those who died. The digital property could include photos saved to an internet platform, digital music library, emails and credit card loyalty points.
Aaron Dobbs, an estate lawyer in Houston, sat down with the Chronicle recently and talked about how the legislation will make it easier for family members and others responsible for unwinding someone’s estate to inherit digital property much like they’d inherit real estate or securities. Dobbs’ comments have been edited for length and clarity.
Q: Why the new law?
A: It addresses a change in the way we look at digital assets, which can have tremendous material and sentimental value. I don’t think most people equate digital assets with a bank account or a house but they can carry the same kind of value. It could be a domain name that could have lots of value like toys.com, which sold for $5 million. It could be photography stored online that could be sold. Someone like Annie Leibovitz may have a large portfolio stored online. And the airline points could have value.
Q: Whoa! Airline points are digital assets?
A: Some airlines and credit cards companies don’t allow points to be transferred under their terms of service, but some do.
Q: How did the transfer process work before Sept. 1?
A: Access was dictated by individual terms of service, whether it was Facebook or LinkedIn or another online platform. A lot of times, the terms of service didn’t allow for third-party access. When users died, online companies would turn off the accounts and delete the content. If an executor knew the login and password, it could be unauthorized access under federal law and possibly a cybercrime.
Q: Can an executor give the digital assets to just anyone?
A: No. The transfer would be governed by the written instructions left by the user. Like in a will or a trust.
Q: So when you’re getting your affairs in order, should you make a provision for your credit card points, your music, your books and your Instagram?
A: Yes, for a number of reasons. The obvious is to make sure that the assets are transferred to the appropriate person. But on the other hand, perhaps the user doesn’t want the assets disseminated and may want the executor to terminate the account and destroy the contents.
Q: Are there privacy concerns to worry about?
A: Yes. I could envision a celebrity’s family getting control of embarrassing email or text messages and publishing them for profit. If you are concerned with that, this might be a discussion to have during the estate planning process.
Q: Will the new law make it easier for executors to obtain assets?
A: That is the goal, but the law does not allow executors to have new or expanded rights users didn’t have. The executor is still governed by the same terms of services as the user. The license for music is not transferable with iTunes, for example.
Q: Can’t you just go in and raid the points or music before the company figures out the user died?
A: You could if you knew the credentials to get in, but that’s probably illegal under federal cybersecurity laws.
Q: Do you have clients who fight over digital assets?
A: Sure. I have clients who fight over everything. This is no different. It’s like a box of photographs.