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Assets loaded but locked in the cloud

Posted by Todd Graham | 12 October 2018 | News & Events

Imagine your 40-something wealthy mother died suddenly. You’re her eldest and the sole executor of her will prepared in 2003.

The funeral was months ago. Terse text messages are arriving on your mobile from your younger estranged siblings in Paris and Tokyo. Their university fees are overdue, they need updates on mum’s estate.

Your mother had two marriages, one in Paris and another in Tokyo. She lived in each for years and this year returned to Sydney. She was a successful fashion and art photographer. Her career and income was sourced from owning copyright in her photography portfolio.

Her wealth was in her intellectual property. She was constantly travelling on photo shoots abroad. Her work is in galleries and several collections in Australia, Europe and Japan. Prints are sold on postcards, posters and other merchandise. Royalties are earned from four best selling photography guide books. They are in print and electronic formats and in English, French and Japanese editions.

You’ve been taking calls on mum’s mobile phone at odd hours from her clients abroad. They’ve not heard back despite reminder emails and direct messages. You don’t speak French or Japanese to explain.

Loaded and locked in the cloud is mum’s work, and now her estate. You are locked out of her laptop and software, and online platforms and accounts mum established and used.

At least she left a will. Months have passed since her funeral and the lawyer whose name was on the will got “probate” for you. As the executor it made you legally empowered to deal with the property of “the deceased”.

Pointing to her laptop one day your mother said: “This is my business model in two terabytes.” All that’s useless now without access to her online accounts, bank accounts, licensing contracts, and book royalty statements. She’s mentioned bank accounts in Paris and Tokyo, but with which bank?

Without a user name and password combination iCloud, Google Photos, Dropbox and Adobe Creative Cloud are locked accounts. None have phone numbers to ring. Mum’s Lightroom catalogue of images is the goldmine with high resolution images. Instagram, Flickr and Facebook were her promotional conduits. What instant messages await unanswered in them? Did mum keep a digital assets inventory?

Appreciating what’s in the best interest of the estate, the lawyer whose name is on the will refers you to a specialist. He’s a lawyer in Sydney with decades of experience with digital assets, intellectual property, online platforms, and e-commerce.

Meeting now with Michael Perkins (*), an estates lawyer with specialist knowledge about digital assets working at Nexus Law Group, he immediately comforts you with a referral to IT specialists, forensic accountants with a computer forensics division, who can unlock the laptop and as much as possible the software and online platforms.

Recognising your frustration with law, Michael reads you this wording which he says goes into today’s state of the art wills:

“MY TRUSTEE may, to the maximum extent permitted by law:

(a) use, access, modify, control, delete, assign, transfer or dispose of any of my Digital Assets; and

(b) obtain, access, modify, delete, and control my passwords and other electronic credentials associated with my Digital Assets.”

You are advised that access to your mother’s online accounts are governed by online platform user agreements (most of them under US law). As for the bank accounts abroad the law of Japan and France applies. Fears swell in your mind of your complaining siblings getting involved, accessing estate accounts, disputing your decisions, disrupting the healthy ongoing operation of your mother’s estate.

Australian legislation has little to say about our digital assets” you are advised. “But you can tell your brother and sister that there are relevant guides from the Society of Trust and Estate Practitioners.”

What’s that Society you ask. “STEP is an international professional body. STEP members advise families and their estates. Its in 56 countries and has over 20,000 members, like lawyers, accountants, other advisers, wealth managers, and trustees. STEP provides an interdisciplinary focus for these specialists in estate planning and related practice. Go to www.step.org. You’ll see a chapter in New South Wales.”

During the meeting Michael emails to you a Word document with a two column table titled Records Data Form. “Tell your relatives you’ll be filling this in, that will assure them that you and the forensic accountants are onto it.”

Now at home on the lounge with mum’s laptop on the coffee table you call and make an appointment to drop off the laptop with the forensic accountants.

Breathing more easily, you type a task list to record the next steps mentioned in the lawyer’s office. These are next steps to keep your mother’s photos earning revenue from copyright licensing, prints and books royalties for years. You know your mother’s digital assets have much more value than her Sydney apartment and belongings. Properly managed they’ll provide an income stream for years.

Tasks for Digital Asset Management

  1. Passwords management – Keep a list of passwords, maybe use password manager software.
  2. Asset categorisation – List in words, and sketch a mud map on paper, categorising the different types of assets and how they link together. List photos, book titles, bank accounts, social platforms etc.
  3. Records Data Form (**) – Use this to record computers, backup drives, cloud storage (iCloud, Dropbox etc), domain names, online accounts, and other electronic accounts and records.

——

(*) Michael Perkins leads the Nexus Private Client Services practice and has written extensively on digital assets in estate and succession planning. He is a co-author with Jayne Humphrey of a digital assets guide titled Your Digital Life: Learning from STEP Worldwide and Next STEPs and co-author with Robert Monahan of Estate Planning: A Practical Guide for Estate and Financial Service Professionals, 4th edition, Lexis Nexis 2015.

(**) Email Nexus for a copy of our firm’s template Records Data Form.

PHOTO CREDITS ON UNSPLASH: In order of display above – Sorasak @boontohhgraphy, Alfonso Reyes @mrarc, Kenny Luo @kennyluoping and Agathe Marty @agathemarty.

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