What Happens to Digital Assets at Death Depends on What We Own or Don't Own

May 27, 2010
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imageThe following article is from @nathandosch, Estate Attorney and author of DigitalEstatePlanning.com.

Digital Assets: Property or Licenses?

The foundational element to estate planning for digital assets is determining the character of the interest that the client wishes to distribute or dispose of upon his or her death. This is particularly important in the context of digital assets because the diversity of the digital asset category is expansive. In addition, the term ?asset? when used in conjunction with ?digital? does not conform to the traditional property law system.

The Digital Death industry has collectively decided to use the term ?digital assets? to refer to a broad category of accounts, memberships, licenses, property and legacy items. Since the law and a client?s rights vary depending on the character of the interest, it is essential that practitioners not only identify and categorize digital assets, but they must understand if and how a client can transfer or dispose of those digital assets.

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Given both the significance and breadth of the property vs. license discussion it would be naive to think I could do it justice in one, albeit lengthy, post. Therefore, I have decided to start a series dedicated to answering the following questions: What, if anything, do we ?own? in regards to digital assets? and What about everything else?

The answers and conclusions from this series discussion the categories of digital assets will feed directly into the estate planning for digital assets discussion where I hope to answer the following questions: If a client can transfer or dispose of digital assets following his or her death or incapacitation? and How can practitioners ensure that the client?s wishes in regards to the transfer or disposal of digital assets is legally binding and enforceable?

In a developing area of law it is not surprising to see more questions than answers so I am not discouraged by this. Instead I view it as an opportunity to develop a solution for an important planning issue that will only continue to grow in significance as technology and our collective Internet presence advance. I will file the series in the ?Categories of Digital Assets? folder so we can centralize the discussion.

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