Digital Account Estate Planning
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Recently the Uniform Law Commission endorsed a proposed plan for “digital assets.” As it stands right now most states have little or no law on the books that specifically addresses what happens to your online accounts when you pass away. And these days for many people that is pretty significant. Think of all the stuff you keep in the “cloud.” It may be pictures, music, videos, letters, e-mail messages, or the like. And then there is all that social media information such as on Facebook or Instagram.
The proposed legislation would give loved ones access to a deceased person’s digital accounts unless the deceased person’s will says otherwise. To become law, the proposed law would have to be adopted by each state’s legislature. Most importantly the law would trump “terms of service” agreements by tech companies that prohibit people from accessing an account that isn’t theirs. Otherwise, even if you have the password, you may be violating federal law just by accessing the online accounts of your loved one.
Facebook’s policy for memorializing a deceased user’s account has changed. No longer will a memorialized account have its visibility restricted to only friends of the deceased user. Instead, Facebook will preserve the same privacy and visibility settings that the deceased user had specified during lifetime. Also announced in the news release is the ability to request a “Look Back” movie for a deceased user’s account. Only a friend can make the request for a “Look Back” movie for a deceased user, and this request must be made after the deceased user’s Facebook account has been memorialized.
Most Terms of Service agreements for online accounts do not specify what happens when a user is incapacitated or after a user is deceased. Thus family members and the fiduciaries acting on behalf of the user face delays and obstacles in trying to access the user’s online accounts and other digital property. They may not have the user’s password. Or perhaps they cannot use the password because it violates the account’s Terms of Service, which potentially could be prosecuted under state or federal criminal laws including the Computer Fraud and Abuse Act. Or, maybe the fiduciary has requested a copy of the contents of the deceased user’s online account, but the account provider is not able to divulge the contents without the lawful consent of the user because of the privacy protections under the federal Stored Communications Act. These are significant problems facing family members and fiduciaries when dealing with an incapacitated or deceased user’s online accounts and digital property.
Facebook’s Terms of Service agreement does not permit anyone to log into another user’s account, not even a deceased user’s account. Also note that Facebook will not reset or reveal the password of a deceased user’s account.
Hopefully someday users will be able to easily designate one or more beneficiaries or agents who could receive a copy of all (or a specified portion) of the user’s account contents after the user has died. This is an area of law that is likely to see many changes in the next few years. Stay tuned.
Most people would think that their executor, trustee, or agent under a Power of Attorney would generally have authority to obtain information about, or gain access to, relevant digital accounts in case of disability or death. However, it may not be that easy. General authority may not be sufficient under laws enacted to protect your privacy, to prevent cyber-theft, and to increase computer security. In some circumstances it may be unlawful for an agent to access an account even if the agent has access to the username and password. And the terms of service on many online accounts do not authorize an agent to act on behalf of the account owner.
Many states do not yet have laws that specifically authorize an agent to access electronic accounts. It is likely that most states will enact laws in the coming years to deal with this with this issue and provide a specific method for authorization. But for the time being it is prudent to add language to wills, trusts and financial powers of attorney specifically granting agents, executors, or trustees access to digital assets.
Where do you keep your essential financial information and valued photos, videos, and family information? In the past people would have had a lockbox, or safe, or desk drawer in which to keep financial information. They may have had photo albums on the shelf. Or maybe they would have had a file drawer with scrapbooks, family tree chart, or correspondence and awards, etc. But now for many people those things are stored on a computer or hand-held device. Everything can now be done online from managing finances to communicating with family and friends, to maintaining calendars and contacts, storing family photos, and accessing books, music, and periodicals. Many of us have social media accounts and some even have a personal website. Each website or application requires a username and password. Who will be able to find and access of all of your accounts in the event that something happens to you?
Of course you should keep a list, but given the sensitive nature of the information, this list must be safe, secure, and yet also accessible if something happens to you. In the event of your disability or death, will your loved ones be fully prepared to access to your digital assets?
There are at least four important components of a good computer digital account (CDA) plan:
- A digital asset inventory — create a list of your online accounts and digital assets (this must be routinely updated).
- Security for the inventory — keep the list in a safe place to prevent misuse, but arrange for access to it when the need arises.
- A designated digital fiduciary — choose an appropriate person to access and manage your digital assets in your absence and upon your death or incapacity.
- Arrange for access — inform your fiduciary how to find your inventory when you cannot access it and authorize access your computer and electronic accounts with your passwords.
A good estate plan takes these items into account. An experienced trusts and estates attorney can help you create and review a CDA plan as part of a comprehensive strategy to protect yourself and your heirs.