As we age, memories of family and friends become all the more treasured. Indeed, for many of us, our most valued possessions are those things which “captured” such memories – home videos of our children’s first steps, photo albums of family members, and so on.

Traditionally, making estate planning provisions for these items was relatively simple – memories were all “captured” in tangible “containers,” i.e., recording media, such as photograph paper, VHS tapes, CD’s and DVD’s.

More recently however, digitization has changed the way memories are stored. Gone are the days of physical “containers.” Photographs, videos and other media are now almost exclusively stored in digital format: whether on a physical device such as a laptop computer or “in the cloud” on platforms such as Gmail, Facebook, DropBox and iCloud.

This continuing digital revolution has changed the way we store intangible, electronic assets – or “digital intellectual property.” Ownership of a “container” is different than ownership of the underlying rights in the content stored in such a “container”: an important distinction to keep in mind when estate planning.

Digital Executor

First, select an executor. This person will carry out the will’s instructions and is a critical part of any estate planning. Often, executors are tasked with collecting, liquidating and distributing the assets of an estate to various named beneficiaries. Unfortunately, many executors are ill-prepared for the various challenges associated with the collection and distribution of digital assets.

Accordingly, estate planners may wish to consider appointing an additional, “digital executor” – a person who is technologically savvy and can help the primary executor with the various computer-related functions of managing digital intellectual property. This could be an independent professional (Henderson Franklin offers such service) or a computer-literate family member who can help secure and distribute digital IP in accordance with the terms of the will (e.g., ensuring that all the testator’s family and friends receive access to digital photographs, videos, etc.).

There are three primary guiding principles which estate planners should follow, namely:

• maintaining physical access to hardware;
• maintaining electronic access to hardware and digital access to software; and
• proactively establishing a legal right for loved ones to access digital content.

Physical Access to Hardware

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