Virtual Property – Probate for Digital Legacies

Can our digital property be transferred or accessed by loved ones when we die? There are many stories of family members who have tried to access the accounts of their deceased relatives in order to be able to create memorials, learn more about the lives of the loved ones they lost, or even access tangible assets, but have faced lengthy and expensive battles in order to gain this access.

John Ellsworth wanted access to his son’s Yahoo! account in order to create a memorial after his son, Lance Cpl. Justin M. Ellsworth, a Marine, had been killed in action. Yahoo! was concerned that this would result in a privacy violations based upon the user agreement. It was three months before the family was able to gain access through the Michigan court system.

People also hold personal property in online social sites. Gamers attach real value to weapons and codes for games such as Wold of Warcraft. For example, in January 2002, a gamer paid $330,000 for a virtual crystal palace space station. These assets are all held in private virtual accounts. Unless the person holding the asset has printed out a copy, the intangible property, remains intangible.

Facebook argues that uploaded user content becomes the property of Facebook and not of the person who owns the account. However, they have a deceased-user policy so that family members can determine how the account should be handled. One option is to profile taken off of Facebook. The other option is to turn the account into a memorial, so that friends and family members can leave messages, but protects the account by preventing someone from logging in and using it abusively. Other social sites have similar policies by which they will deactivate accounts and will only release access through court order.

Only five states have current laws that address this issue: Connecticut, Idaho, Indiana, Oklahoma and Rhode Island. Earlier this week, Massachusetts State Senator, Cynthia Creem, proposed digital legacy bill so that executors of an estate could have access to online email accounts for the deceased. An executor of the estate has access to the house, car, and bank safe. So what makes a password on an account, creating a lock to virtual property, any different? This question requires greater legislation and further state statute alignment so that the online world can understand the probate process for virtual property.

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1 thought on “Virtual Property – Probate for Digital Legacies

  1. This raises questions of how often people hide assets in online game accounts to avoid child support or creditors while in bankruptcy. Also, could that be a tool for money laundering? Overall, great article.

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