Digital Legacy Disputes

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 What is a Digital Legacy?

A digital legacy is all of the digital information about a person or that a person accesses and that is stored online or on hardware (like a computer or external hard drive) and will be left after you die. More specifically, a digital legacy is all of the accounts, social media interactions, posts, online conversations, files, photos, videos, profiles, websites, blogs, and comments a person has left online or in electronic form.

Items that contribute to a digital legacy include:

  • Facebook, Twitter, Instagram, LInkedIn, Google+, TikTok, and other social media accounts
  • Online gaming accounts
  • Blogs, online publications, and licensed domain names
  • Soundcloud or other audio file accounts
  • Accounts associated with online sales and shopping such as eBay, Etsy, and Amazon
  • Certain financial records, including PayPal or Venmo
  • Online accounts associated with utility companies or online retailers
  • Online currency, like Bitcoin
  • Files, photos, videos, documents, or other content stored electronically

It is important to understand that a digital legacy can be impacted by online content that is originally created by someone else. When you interact with their tweets, posts, blogs, or articles, those interactions become a part of your digital legacy.

A digital legacy will also include things other people post online about you. Examples might include newspaper articles, blog posts, or information shared on a website. Your digital legacy can be changed by you and by others while you are alive and after you die.

All of the content and pieces of information are known as digital assets and digital assets can have value. That value can be economic, sentimental, or both. Photographs might be completely sentimental, while an established website may have a thriving business attached to it. A popular blog or YouTube channel might generate income via ads that run on the site for a long time after the creator has died. A manuscript or draft of a book saved on a home computer might be both sentimental and potentially valuable if there is a possibility of publishing it.

How much control you have over your digital legacy will depend on whether you own the account and its content and information. For example, the content you post on a social media platform like Facebook is owned by Facebook, not the person who posted it. Therefore a person’s account typically terminates upon their death and the contents are not something a person can pass along in their will.

In other cases a person has a trademark, copyright, or other protection and therefore has ownership rights over their digital content. In that situation the person might be able to pass the ownership rights to another person using their will. However, if the content a person created (such as music or other art) is saved in an account that expires, it might be lost if no one is granted access upon the owner’s death.

Regardless of whether you own the content, you can leave instructions for what you would like your executor to do with the material in your digital legacy. For example, you can leave login information, such as usernames and passwords, and written permission if you want someone else to be able to access and manage any online accounts. That person will not have ownership rights, but will likely be able to manage the accounts and carry out your wishes.

What are Some Common Digital Legacy Disputes?

A person’s digital estate, or the total of all of their digital assets stored online and electronically, can be the source of legal disputes when the person who created the digital content or who is the subject of it dies.

Some common digital legacy disputes include:

  • Disputes over information that has been “lost” after a person died or their account expired.
  • Disagreements over who actually owns copyrighted or otherwise protected materials
  • Disputes over the digital assets named in the will and how they will be distributed.
  • Issues with people gaining access to accounts, especially those associated with the purchase and sale of goods, such as Amazon, eBay, or other online retailers.
  • Identity theft, of either the decedent or someone connected to them, though an online account.
  • In some cases there might be disputes over the value of the digital asset, leading to disagreements over how they are distributed.

There might also be disputes that arise if the executor does not carry out the instructions in the will for managing digital assets. Surviving families or others with an interest in the digital assets might pursue legal action if the executor fails to act as the will instructed. If the executor attempts to use the digital assets for their own gain there might also be criminal consequences.

In some cases there are laws that protect accounts from being accessed by anyone other than the account holder, even after their death. This might be the case even if an executor or family member has been given the login credentials (username and password) and permission to access the account. If you have a digital legacy that you wish to protect or pass on to anyone after your death, you should be sure to review the terms of service for any web-based platforms you use.

How are Digital Legacy Disputes Resolved?

Some disputes over a person’s digital legacy will require legal action to resolve them. It might be necessary to take one or more of the following steps to resolve a digital legacy dispute:

  • Review the person’s will to determine their intent regarding how their digital assets should be managed after their death.
  • Contact the host of the account that is at issue to determine the legal status of the content. For example, it might be necessary to formally contact Facebook, Twitter or other account providers to determine what their rules or terms of service say about content on their site.
  • Ask the probate court to remove an executor who has breached their duties.
  • Petition the probate court to redistribute digital assets in a way that more clearly reflects the decedent’s wishes.

In some cases there might be civil liability for losses that result from a dispute over digital assets.

Do I Need a Lawyer for Assistance with a Digital Legacy Dispute?

Digital legacy laws and the interaction of digital assets and estate law is evolving. State laws differ in terms of how these matters are handled, and some states do not have any specific laws that address digital legacies and digital asset distribution. It is a good idea to consult with an estate lawyer who can advise you and help you plan for how your affairs will be handled when you die.

It is important to plan ahead and to make an inventory of your digital assets and the contents of your digital legacy. An experienced attorney can help you organize the information necessary for accessing your accounts and help you decide who will inherit your digital assets. They can advise you regarding how to choose an executor and help you decide who might be the best person to manage your accounts.

In the event you have inherited digital assets, or think you should have been the beneficiary of someone else’s digital assets, an attorney can represent your interests in that dispute.

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