According to a survey in Rocket Lawyer, 63 percent of people don’t know what happens to their online or digital assets after death. Facebook, Twitter, Instagram, iCloud and a host of other online applications store a wealth of your personal information, and competent estate planning advice now includes advice regarding the disposition of these digital assets and the related information. A failure to account for such digital assets may lead to hacking or fraud, particularly for assets linked to a credit card, especially if no one knows of the accounts’ existence and therefore doesn’t have the ability to deal with such accounts.
Most of us now employ a number of digital assets, including social media accounts, blogs and websites, online financial accounts, email accounts, online retail accounts and retailer apps, photo- and video-sharing sites, music sites, online payment accounts including utility accounts and other online and data storage accounts. In most cases, someone will need your username and password for any accounts to carry out your wishes.
After you create a secure inventory of these digital assets, including usernames and passwords (perhaps by using a digital wallet), you should make sure your loved ones will be able to access this information should you end up in the proverbial “cloud.” However, you also need to know several things regarding online tools, “digital” executors and service agreements that may govern your digital assets.
Online Tools
Authorized by the Revised Uniform Fiduciary Access to Digital Assets Act of 2015 (the “Act”), a given service provider’s “online tool” mechanism supersedes a contrary direction in an estate plan or in a Terms of Service Agreement, called TOSA for short, to determine a digital asset’s ultimate disposition. Google’s Inactive Account Manager, for example, automatically alerts you if your account remains inactive for a set amount of time. Failure to respond to the alert in a timely manner causes Google to notify a friend or family member—or your digital executor—to confirm your death before carrying out your instructions. Like a financial beneficiary designation, such online tools provide a quick and easy way to dispose of digital assets. Consider using them wherever available and remember to update them periodically.
Appointing a Digital Executor
If a service provider fails to offer such an online tool, or if you want to guard against the misuse of such a tool, consider naming a digital executor to carry out a digital estate plan at your death. The Act extends the traditional power of a fiduciary to manage tangible property to include management of a person’s digital assets to allow fiduciaries to manage digital property like computer files, web domains and virtual currency, but it restricts a fiduciary’s access to certain electronic communications. Thus, email, text messages and social media accounts remain private unless the original user gives consent in a will, trust, power of attorney or other similar record.
A website, blog, affiliate accounts, Google AdSense accounts and the like attached to a business may require an employee familiar with the business to serve as your digital executor. However, personal accounts may only need a family member or close friend. If your wishes require physical access to a computer, account for this in choosing the person to handle such matters. Appointing a digital executor in Seattle to handle tasks requiring a physical presence in Atlanta may cause more problems than it solves. In all events, choose a person with the knowledge and ability to carry out your requests or that allows that person to hire a professional to assist.
Inform your digital executor about accessing your digital estate plan and make sure your digital executor understands how you want your digital assets handled after your death. For example, let your digital executor know if you have automated any of your accounts using an online tool so he or she will not waste time and money dealing with that digital asset.
Provide explicit written instructions in your will consenting to the release of data to a fiduciary at death, but be careful that you don’t go overboard and release content that you don’t want disclosed. Your will should already dispose of financial assets, including online banking and brokerage accounts so you shouldn’t need a separate set of instructions for those digital assets. But your other, non-financial digital assets require further explicit instructions.
Service Agreements
Under the Act, a TOSA controls your digital assets without express written consent to the contrary, so clearly spell out your wishes either through the use of an online tool or by explicit instructions in your will. TOSAs favor the online providers and, like intestacy provisions, often lead to unexpected, time-consuming and expensive results. Generally speaking, TOSAs refuse access to anyone who isn’t an account owner so beware of leaving your family in this situation.
Planning for your digital assets requires careful thought about the person who will have access to the intensely personal information associated with your digital assets and about the manner in which you want that person to maintain or dispose of your digital assets. As always, consult with an experienced estate planning professional to save your family time and money in dealing with these assets.
