Posthumous Management of Digital Assets and the Role of Estate Planning
Although it still seems a bit taboo to talk about your own demise, as estate planners we are constantly having to speak with clients about their eventual death when drafting their estate plans. While this might lead to a somewhat uncomfortable conversation, it is essential that an estate plan address the contingencies in life.
As times change, individuals are storing more and more information online. This information, known as digital assets, includes everything from your social media accounts and email accounts to digital file storage and payment accounts like PayPal. While live tweeting your funeral might not be your primary goal, the question remains: what will happen with your digital assets after you die?
Unlike most property, most digital assets are governed by terms-of-service agreements rather than property law (aka those pop up boxes with small font and legal jargon that you click through in order to open your account). Some platforms such as Google have introduced features that allow the user to provide access to their accounts to specified individuals when they die. Google calls this their “inactive account manager” (click here to read more). Others such as Facebook and its subsidiary Instagram will allow a representative to delete or memorialize the decedents account after receiving a copy of their death certificate.
Absent company polices such as the ones above, many of these digital accounts are remaining either frozen in time or deleted after a certain period of inactivity.
To address this problem, the Uniform Laws Commission (ULC) created the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which has been adopted in several states, including Oregon. The Act gives internet users the ability to plan for the post-mortem management of their accounts similar to how they would plan for management of their tangible accounts.
RUFADAA uses the following tiered approach in determining the power to access an online account in the face of conflicting instructions:
Tier 1: Does the website provide users an online tool separate from the general terms of service that allows another person to have access to their account? (aka the google approach)
If yes, RUFADAA makes the user’s online instructions legally enforceable. If no, see tiers 2 and 3 below.
Tier 2: You have an account on a website that does not provide a post-mortem planning option. Did you provide legally enforceable instructions in a will, trust, power of attorney, or other legally enforceable document?
If yes, those instructions are legally enforceable. If no, see tier 3 below.
Tier 3: You did not provide any direction through either an online tool or traditional estate plan. In this tier the terms of service regarding fiduciary access will be legally binding on the account. Absent such terms in the terms of service, the RUFADAA default rules of access will apply.
The Role of Estate Planning:
Absent online tools like the “inactive account manager,” there are several simple ways you can work with your attorney to plan for the disposition of your digital assets along with your tangible assets. Below are my top 4 planning tools for digital assets:
1. Inventory your accounts: Make sure to inventory your online accounts, electronically stored files, etc. and keep a list with login information in a secure location. When planning make sure your trustee or personal representative is aware of this location. This will make it much easier for your loved ones to inventory all of your assets, especially those that they may not even know exist digitally.
2. Include digital assets in your estate plan: With terms of service constantly changing on your digital accounts, the best way to guarantee post-mortem access to your accounts is to include clear intent of your wishes in your estate plan.
3. Choice of language: Include specific language in directing the closure and inventory of data on accounts you currently have, but also make sure your attorney includes broader language to address any future accounts you open.
4. Open communication: As with any aspect of your estate plan open communication about your intentions and wishes with either your personal representative or successor trustee is always a good idea. Choose that person carefully and speak with them often about your estate planning goals.
If you have any questions about including your digital assets in your estate plan or about how the RUFADAA might affect you, please feel free to contact our office at 503-206-6401.