According to Wikipedia "A digital asset is any form of content and/or media that have been formatted into a binary source which include the right to use it. A digital file without the right to use it is not an asset." In its strictest sense, and asset (digital or not) is an item of value owned.
As far as email, social media, and other SaaS software services go, it depends on what is stated in the Terms Of Service (TOS). Do you really own the data contained in your account or are you merely allowed use of a service? Buried in the fine print it may be a sad reality to learn that you do not own the data, especially for a free account. Even worse, if the TOS states that your account is non-transferable then no one, but you, is allowed to access the account.
So what happens if you die or become incapacitated? If your digital media is truly an asset then it should be subject to the same laws as any other type of personal property. If you are incapacitated, then the disposition of your property is subject to the terms of a durable power of attorney. If you die, then, depending on the type of asset, disposition is subject to the terms of a beneficiary designation, will, or trust. If there is no beneficiary designation and none of the legal documents exists, then disposition is decided by the courts.
Lately, a flurry of "digital legacy" products has become available that claim to provide beneficiary services for digital assets. Although these appear to be useful services, the legality of this type of beneficiary designation has yet to be decided, and it just doesn't make sense that you would pay a third party vendor to provide this type of service. For example, if I open a mutual fund I must name my beneficiaries on a formal application, which is filed directly (for free) with the mutual fund company. Why should digital assets be any different? If I open an email account, shouldn't the email service provider supply a beneficiary designation form as part of my account profile?
Once the legal community finishes debating the topic, I predict that it will be common to see a beneficiary designation form included in your digital account profile. In any case, none of these methods should be viewed as an adequate substitute for sound estate and succession planning. Make sure to see an estate planner for exact details on your specific situation. Once you're gone you won't get a second chance!
James Bell
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