Today, 77 percent of Americans go online every day, according to a recent Pew Research Center survey. And, most of us maintain at least some kind of digital data in the cloud. We save emails, post to social media, and store photos in online albums.
All of this digital information has created a new issue for you, your heirs, and the technology firms that hold your assets. The key concern is maintaining your privacy and security, and determining who can legally access this information upon your death.
A statute called the Revised Uniform Access to Digital Assets Act provides a legal path for fiduciaries (such as your Personal Representative or attorney-in-fact) to manage your digital assets if you die or become incapacitated. But under the law, which has been adopted (often in slightly modified versions) by most states, a fiduciary can access your digital assets if, and only if, you've given proper consent.
What are digital assets?
Digital assets include your online accounts, your emails, your social media, online photo storage, personal websites or blogs, URLs you own, etc.
What's the concern?
Even though many digital assets have no monetary value, you may want some control over what happens to them when you die. Think about what digital assets you may have, and whether you would want those assets deleted, modified, or distributed to family.
Until the uniform law was enacted, it was difficult to know who had a legal right to access these accounts and files. Some user agreements indicate that these assets are non-transferable, meaning they are either untouchable or can simply be deleted when you die.
Beyond privacy issues, some digital assets do have value. Frequent flyer points are transferable after death, credit card points can be redeemed, and URLs may be sold.
What's your legal protection?
Under the uniform law, your family members or personal representative can't access your digital assets just because of that relationship. Other users, including family members, need express authorization to access your accounts and information.
How can your personal representative and/or family have access?
- Insert a provision in your will that grants your personal representative the authority to access digital assets and accounts. If you want someone other than your personal representative to access your digital assets, you can appoint a special fiduciary for that specific purpose.
- Add language that grants your power of attorney authority to act on your behalf in terms of digital assets.
- Inventory your digital assets and provide someone with the necessary passwords. Some online password managers can be set up to transfer passwords to another person at your death.
- Designate a digital guardian in any online tools that offer such a feature. For instance, Facebook's "legacy contact" and Google's "account trustee." This is someone who will look after your account after you've died. Be aware, however, that under the uniform law, any such settings will override conflicting instructions you leave in your Last Will.