What happens to your Facebook account when you die? What electronic media did you use today?
All of the different online accounts that you use are your digital assets, and they challenge traditional estate planning approaches. The Revised Uniform Access to Digital Assets Act (RUFADAA), revising the Uniform Access to Digital Assets Act and developed by the Uniform Law Commission, establishes rules and regulations surrounding digital account ownership.
According to a recent McAfee survey, the average individual has over $35,000 worth of assets stored on his or her devices. Such assets include personal memories (photos, videos, and the like), personal records (like health, financial, and estate planning information), entertainment files (think: music, tv shows, ebooks, video games, apps) and personal communications. Fifty-five percent of those surveyed are storing digital assets on their devices that would be impossible to re-create, re-download, or re-purchase.
Under present law, it’s not entirely clear who can access and manage your online property if you become incapacitated or die. Meanwhile, Terms of Service Agreements (TOSAs) (those agreements you quickly scroll through to click “I Agree” in order to set up or update your online account) tend to limit access to only the individual account holder. RUFADAA spells out certain powers given to a fiduciary to manage digital assets in the event of the death or incapacity of a digital asset owner.
Pennsylvania State Sen. Tom Killion, R-9, has authored a version of RUFADAA, SB 320, called the Fiduciary Access to Digital Assets Act, to allow a fiduciary in Pennsylvania to access digital property from cloud storage companies by sending a certified document proving his or her authority to manage those electronic assets. Until Pennsylvania adopts a version of RUFADAA, here are a few concrete steps to consider:
First, identify and create an inventory (hard copy or electronic) of all digital assets. Update it regularly.
Second, provide access to your digital assets to your fiduciary through the variety of online management tools that range from creating an account with multiple users to the hodgepodge of company-specific programs available to users. Here’s a quick, by no means comprehensive, list:
· Facebook allows you to designate a Legacy Contact. https://newsroom.fb.com/news/2015/02/adding-a-legacy-contact/
· Google offers an Inactive Account Manager. https://support.google.com/accounts/answer/3036546?hl=en
· The Microsoft Next of Kin process permits the release of your account data to your next of kin. https://answers.microsoft.com/en-us/outlook_com/forum/all/microsofts-next-of-kin-process-accessing-emails/c848d768-58e8-428f-b10a-4fcd1f95c8d8
· Your next of kin can request that your Yahoo account be closed; however, per its TOSA, Yahoo will not provide anyone with access to your account or account data. https://help.yahoo.com/kb/account/sln2021.html?guccounter=1
· Similar to Yahoo, Twitter does not give anyone access to your account when you die; however, the deactivation of the account of a deceased or incapacitated person can be requested.
· Instagram can memorialize your account after you die, removing it from its public Search and Explore space. https://help.instagram.com/contact/452224988254813
· LastPass give you the ability to grant one-time access to your account to a designated user. https://support.logmeininc.com/lastpass
Third, your durable power of attorney should include a digital asset provision. Similarly, your will or revocable trust should specifically devise digital assets and appoint a fiduciary (such as a digital personal representative or digital trustee) to administer the digital assets.
Lastly, consult with a knowledgeable attorney to make sure you’ve covered all your bases in doing your digital estate planning.