With so many hours spent on email, social media and other internet activities, it might feel as if your whole life is lived online. But have you ever wondered what will happen to your accounts and photos when you pass away? How will loved ones communicate about your passing, access photos of you, or wrap up unfinished business? The simple answer: you can leave instructions describing your wishes.
Written instructions in your estate planning documents can help your executor or trustee access your digital legacy post-death. A digital legacy may include accounts on Facebook, LinkedIn, Instagram, or Twitter as well as blogs, licensed domain names, music, photos, files you store online and access to financial accounts.
In recent years, laws have been enacted to facilitate the transfer in ownership of digital accounts. The most notable of which for Michigan residents is the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA” or the “Act”). This Act provides individuals an ability to empower a fiduciary – such as an executor or trustee – to receive disclosure of the individual’s digital assets from the entity that runs or operates the account (also known as the “custodian” of the account). For example, Apple is the custodian of iCloud.
Under the Act, a properly empowered fiduciary would have the ability to petition the account’s custodian for access to the deceased’s account and its contents. Critically, the access granted pursuant to RUFADAA must be in the form of the deceased individual expressly authorizing access within their will, trust, or power of attorney.
The process of efficiently and adequately transferring many digital assets is still in its infancy. With this in mind, there are proactive steps an account owner should take while still alive to expedite access to digital accounts once deceased. For example, it is one thing to have the legal authority to gain access to an account, and quite another to have current direct access with username and password to identify and unlock the account. Thus, it is advantageous to also provide the fiduciary with login information for digital accounts.
Putting login names and passwords in writing does not come without a degree of risk, and caution should be utilized in sharing this sensitive information. If you have concerns about providing your fiduciary with account login information while you are still living, you should discuss safeguard options with your estate planning attorney. At a minimum, the fiduciary should have a username, or the equivalent, to identify the account in question to petition for access.
While the RUFADAA is useful, it is even more advantageous if the fiduciary does not have to rely on the Act at all. This can be done by using online tools directly through the account custodian. These online tools are a relatively new phenomenon but are becoming increasingly commonplace, as account custodians grapple with how to adequately balance account owner privacy against many owners’
desires to transfer digital accounts and contents once the owner is no longer living.
The functionality of these online tools varies from custodian to custodian, but the intent broadly remains the same. At its core, an online tool provided by a custodian allows an account’s owner to identify individuals that are permitted to access the owner’s account in the event of the owner’s death.
One of the more robust versions of this can be found in Google’s Inactive Account Manager. There, the account owner can decide on a time period of inactivity, at the end of which the Inactive Account manager kicks in. The owner also identifies up to ten people that are to be notified once the period of inactivity has run. The tool applies to all Google products, meaning that the owner can choose which of the identified people receive access to which accounts.
Another notable online tool is the Apple iCloud Digital Legacy, a recent addition to Apple software. There, the iCloud account owner can choose up to five people that can access and download the account’s data after the owner’s death. This has been a highly sought-after feature because users often store the bulk of their pictures in the cloud, often making those memories difficult to access following the death of the account owner.
As our lives become further documented online, it is imperative that you work with your estate planning attorney to ensure digital accounts are included in a comprehensive estate plan. A combination of proper estate planning techniques and use of custodian online tools will help to ensure your digital legacy is accessible to your loved ones.
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