Jan 18, 2016

Bank accounts, photos, even Solitaire: Fiduciaries may faceuphill battle accessing your online information

We consistently remind clients that their estate plans must include arrangements to enable the person(s) of their choice to access their digital assets should incapacity strike or death occur. Most of us have password-protected, encrypted online lives. And it's not just bank accounts; it's all manner of information. Online providers take privacy very seriously. If you fail to make appropriate arrangements in advance, your fiduciaries could find it hellishly difficult to access your on-line assets.

How difficult? Well, this recent story from Canada demonstrates how high your family and fiduciaries can be required to jump to access your digital information - if they can get to it at all.

Peggy Bush, a 72-year-old British Columbia resident, shared an I-Pad and an Apple account with her husband. He passed away from lung cancer in August 2015. Following his death, Peggy could not download a card game she had long enjoyed playing on the couple's shared I-Pad. That's when she realized did not have the password to the Apple account. Evidently her husband had taken it to the grave.

Peggy and her family contacted Apple, furnishing the digital giant with a notarized death certificate and a copy of her late husband's will. After months of back-and-forth communication, Apple responded:  In order to reset the password, Peggy had to obtain a court order. Yes, a court order, with all the attendant hassle and costs. Incredulous, Peggy's daughter told the Canadian Broadcasting Company: "I was just completely flummoxed. What do you mean a court order? I said that was ridiculous, because we've been able to transfer title of the house, we've been able to transfer the car, all these things just using a notarized death certificate and the will." Watch a CBC video about the Bush family's experience here.

After the press got involved, Apple relented and allowed Peggy to change the password. She's now back to enjoying her card game on her I-Pad. But Apple, like many online providers, still doesn't seem to have a coherent policy regarding how deceased or disabled users' fiduciaries can access online information. "We'd really like Apple to develop a policy that is far more understanding of what people go through, especially at this very difficult time in our family's life, having just lost my dad," Bush's daughter told the press.

We would like that, too. And here in Florida, it looks like it may happen. As I reported in a post last year, the Florida Fiduciary Access to Digital Assets Act (Senate Bill 494) is now making its way through the state legislature. On January 14, 2016, it cleared the State Senate Committee on Fiscal Policy, with support from AARP, ATT, Facebook - and yes, Apple. The bill would establish a clear method by which someone(s) can be authorized to access and control an individual's digital assets, from electronic bank statements to photos, from text messages to Solitaire. You can read more about the bill and follow its progress here. It's a good start to end what can be a quagmire for many families.

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