Nov 10, 2014

Dealing with digital assets in your estate plan: it's the Wild West today

Shortly after comedy icon Robin Williams died, his daughter's Twitter feed filled up with gruesome fake photos of her father. She was forced to temporarily abandon the social media site. As a result of the incident, Twitter was pressured into changing its policy: It now allows family members to request removal of a deceased relative's online photos.

A good friend of my family passed away two years ago. While cleaning up his home, his brother stumbled upon papers indicating his brother had owned a large quantity of bitcoins (virtual currency) at the time of his death. We are now struggling to access the information and document his ownership. It's an uphill battle, made more complicated because many of the companies and individuals we're dealing with are located in Australia.

When University of Minnesota freshman Jake Anderson was found dead in a snowbank last year, his distraught parents tried to get access to his social media messages, cell phone data and email, hoping the information might clarify the circumstances of his death. The providers turned down their request. (Click here to view a TV clip about this story.) 

And then there's the poster child of all cases, Ajemian v. Yahoo. John Ajemian  died in a car accident in 2006. His siblings wanted access to his Yahoo email password so they could notify friends of his passing. Yahoo refused to give it them. Once the siblings were appointed personal representatives of his estate, they went to court, arguing they needed access to his account to help them locate assets, creditors, etc. in order to properly administer the estate. In the latest installment of the legal battle, the court sided with Yahoo in May 2013, noting that the decedent had agree to Yahoo's terms of service (yes, the gobbledydygook virtually no one reads). It read: "No Right of Survivorship and Non-Transferability. You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted."  (You can read the court's decision here.)

An uphill battle for your fiduciaries?
All these cases demonstrate the uphill battle fiduciaries can face when trying to access a deceased or incapacitated loved one's digital assets. These days, much of our financial life is lived online. Banking and brokerage statements are accessed in the "cloud."  Then there are other assets: photos, email accounts, domain names, Facebook accounts, online magazine subscriptions, Paypal accounts, blogs, frequent flyer accounts. And that's just the tip of the iceberg for most people.

Florida law and federal law are fairly clear regarding who can access a decedent's traditional physical assets, and when. But for digital assets, it's a legal Wild West out there, governed by different state laws; by the federal Stored Communications Act (also known as the Electronics Communication Privacy Act) which limits the ability of online providers to provide surviving family members with a decedent's account information; and of course, by those cryptic internet terms of service. Every online service provider, tech company and social media site has its own terms of service. Some will automatically delete an account after a given period of activity, or after a duration that you specify. Some providers will not provide passwords or transfer ownership, but will, with the proper documentation, provide the account contents to certain individuals. 

Take control!
If you are reading this, chances are you have digital assets, and  probably more than you think. What will become of them when you are gone?  Even if an asset does not have financial value per se - an online photo-sharing account, for example - it may have sentimental value to your family and you will want your loved ones to be able to access it. On the other hand, you may have private accounts -- emails, others, use your imagination - that you want to die with you, and don't want anyone to see, ever.

Having your desires carried out requires some planning. I suggest that at the very least, you make a list of all your digital assets. Check to determine each provider's terms of service, then write down how you want those accounts handled if you become incapacitated or when you pass away. Make a separate list of user names and passwords, as well as the answers to the security questions that pertain to each account. Do not include that list with your will or trust. That list should be tucked away somewhere safe, and your agent and Personal Representative should know how to access it.

Some people use online password storage services, such as last pass and secure safe. Another possibility: Back up all your data and information onto your own hard drive. Create a password-protected file with the information - and be sure to let your personal representative and agent know the password! 

Your elder law/estate planning attorney will be able to guide you on how to handle your digital assets in the event you become incapacitated or pass away. (Another compelling reason to plan for the disposition of your digital assets: once your death is part of the public record, your existing digital financial data becomes more attractive for would be identity thieves (read my prior post on this topic).

Any changes on the horizon to make this all easier?
Delaware was the first state to adopt the Uniform Fiduciary Access to Digital Asset Act (UFADAA), which gives fiduciaries the same access to digital assets that they have to physical assets. The Florida Bar has recommended that our state legislature incorporate the Uniform  code, but there are no guarantees that it will, or when. In fact, the Uniform code has come under attack from privacy advocates who argue that it is an infringement on an individual's right to have his/her digital assets kept private, even in death and disability. Yahoo recently stated that the uniform code is based on the "faulty presumption that the decedent would have wanted the trustee to have access to his or her communications" and that the model statute sets "the privacy default at zero." 

So for now, as far as your digital assets go, you are not living not in the South... you're in the Wild West! Plan accordingly.

1 comment:

Janelle Winters said...

My grandmother recently passed away, and I hadn't even considered that this would be something we'd have to deal with. I appreciate the advice to keep a safe list of all digital assets and record the usernames and passwords now, before something happens or we get old and forgetful. I'll be sure to speak with my other grandmother (I help take care of her) and get this sorted out with her before it's too late - and then I'll start getting all of my assets in order as well. One can never be too prepared!

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