We spend a portion of our lives online in some fashion, and we need to be thoughtful in planning for our “digital assets.” For example, what happens to our email accounts, social media profiles, web accounts, and other information stored online when we are incapacitated, or ultimately, when we die? These assets might include priceless photos and videos, tax information, access to financial accounts, downloaded music and books, or correspondence with others.
There are so many different outlets through the internet and on computers, phones, and tablets to distribute or store information — the people we leave behind may not know every resource we have used (or abandoned) during our lives. This challenge could leave loved ones unable to accomplish two important tasks:
- accessing the accounts to retrieve information (for instance, logging in to a digital cloud service in order to download and/or print family photographs); and
- accessing accounts in order to close them (for instance, shutting down an online merchant service that retains credit card information).
These two simple examples demonstrate how important it is to consider leaving a guide for our fiduciaries (e.g. Personal Representatives, Agents under Power of Attorney, or Trustees) to be able to access our many internet resources when we are no longer able to do so. Without such a guide, our fiduciaries may be compelled to rely on recent legislation that may only give them a limited ability to preserve or protect the information we store or share online.
The first step in creating a plan for digital assets is to take an inventory of what is out there. Consider the following categories:
- Electronic devices (not technically digital assets, but they may be the conduits for accessing digital assets): phones, computers, tablets, external hard drives
- Personal digital assets: photos, videos, music, medical records, blogs, games, loyalty systems; Snapfish, Shutterfly, iTunes, Google Play, YouTube, Vimeo
- Email and social media accounts: email accounts, Facebook, X (Twitter), Instagram, LinkedIn, Pinterest, Snapchat, Google+
- Web services: Dropbox, Google Drive, Apple iCloud, domain names, hosting services, online business accounts
- Financial services: banks, credit cards, investment accounts, retirement accounts, tax platforms, PayPal, Apple Pay, Social Security
- Online merchant accounts: Amazon, eBay, Etsy, Walmart
- Subscription and benefit services: newspapers, blogs, magazines, rewards/loyalty programs
Ultimately, most companies have their own rules on who can access information. A contract was formed when that person agreed to partake in the digital services. It is often a surprise that some assets are not owned; they are leased for the life of the purchaser (for example, digital books and music.) It is not automatic that someone else will be able to access these assets later, so we do our best to make plans for that eventuality, but it is not a perfect system.
Another real challenge is that as companies work to safeguard their data from potential hackers, they also make it very hard for legitimate people to access the assets if the original owner is not present.
In 2018, the Maine Legislature enacted the Revised Uniform Fiduciary Access to Digital Assets Act. This law was codified in response to concerns by the companies that provide online resources about how they should allow access to those resources when a fiduciary requests it. The law distinguishes “digital assets,” which it defines as “an electronic record in which an individual has a right or interest,” from “the content of an electronic communication,” which it defines as “information concerning the meaning or substance of an electronic communication” (18-C M.R.S.A. §10-102). This distinction is important; for instance, in the case of an email account, emails that are sent and received are considered “digital assets” but the actual body of the email would be considered “the content of an electronic communication.” Practically speaking, this means that a fiduciary that was given access to “digital assets” may only be able to see a list of emails that were sent and received, but not the actual content of those emails if they were not given access to “the content of electronic communication.”
A further concern under the law is the method in which permission is given by the account holder to access digital assets. Under §10-104, if a website has a tool that allows the user to choose how these records are accessed, the option selected by the user will always control, even if the Will, Power of Attorney, or Trust instrument contradicts that choice. This means that if you choose not to allow your fiduciary to have access to your online accounts on a particular website, that choice will stand even if your Will has a general provision allowing your Personal Representative to access your Digital Assets when you die. If, however, a website does not have such a tool, then the provisions of your estate planning documents will control.
Even if you have made your selection with an online tool or provided directions to your fiduciaries in your estate planning documents, under §10-106 the company that runs the website still may decide whether the fiduciary will get full access to the account or partial access to only achieve “the task with which the fiduciary or designated recipient is charged.” If a fiduciary is attempting to get access to the “content of electronic communication,” §10-107 requires the fiduciary to provide to the company several documents including a written request for access, a death certificate, letters of appointment, and evidence showing that the user consented to the access.
After reviewing the relevant provisions of the new law, it should be clear that even explicit directions to your fiduciary regarding your digital assets in your Will, Power of Attorney, or Trust instrument may not be enough to ensure that your wishes are honored. The best way to ensure that your fiduciary has timely, efficient access to the digital assets that you want eliminated or maintained is to keep an accurate, curated list of these assets along with the login and password information.
At JKS, LLC we know that digital assets are an important part of our client’s lives; therefore, we have created a template called a “Digital Assets Inventory Worksheet” that should help you to organize this information. If you are interested in reviewing this template and getting started with the preservation of your digital assets, click on the download link below and follow the directions on the worksheet.
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The information presented on this website is general in nature and not intended to be legal advice. No attorney-client relationship will exist with JKS, LLC unless agreed to in writing. Please contact us to discuss your particular situation.
DOWNLOAD a copy of our DIGITAL ASSETS WORKSHEET.
