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Why Your Digital Identity Could Haunt You After Death

Minnesota lacks laws governing how your digital assets are handled when you’re history.

Why Your Digital Identity Could Haunt You After Death

When a person dies, their will or a court governs how their property is handled. In the digital realm, though, passwords and encrypted data often make it impossible, says Jim Lamm, an estate planning and tax attorney at Minneapolis-based Gray Plant Mooty.

Lamm says the issue is becoming a problem. Currently, Minnesota has no legislation on digital assets after death—only seven states have passed laws on the subject, and Lamm says they have all fallen short.

This can be a big problem for small and medium-sized businesses, especially sole proprietorships. “If a small business runs their sales and accounts through a free email system like Gmail and they haven’t planned ahead, no one else may be able to access it if the user dies,” Lamm warns. “I’ve talked to some business owners that had an employee die who used a Yahoo email account for business. The business couldn’t get into his account, so they couldn’t track sales or orders—it was a nightmare.”

There are four issues that distinguish estate planning in the digital world: passwords, encryption, data privacy laws and criminal statutes on unauthorized computer access.

Because of these barriers, “extremely valuable digital property can be lost, such as expensive domain names, web-page or blog control, or virtual currency like Bitcoin,” Lamm says. “Not to mention ‘emotional property’ like photos or personal correspondence. These things can be trapped behind passwords, or fiduciaries can be denied access due to terms of use mandated by Google, Facebook or Apple.”

So Lamm pitched a new law to the Chicago-based Uniform Law Commission that would treat computer, smartphone and online accounts as it does traditional property, such as real estate and bank accounts. As of press time, Lamm says he was almost certain the commission would approve the law at its annual meeting in July, after which Lamm says he will work to have Minnesota to adopt it.

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