Perhaps it’s happened to you: you’re on social media when you receive a notification about a birthday or work anniversary. But you know the person they mention has passed away. It’s more common than you might think, and sparked one Wall Street Journal columnist to look into the importance of planning now for your digital estate.
Many of us have experienced these online echoes of a digital life, but few of us are aware of the steps we can take to plan to our digital assets. While almost half of Americans are estimated to have no estate plan, dying intestate, or without a will, leaves your assets to pass according to federal and state laws.
That’s not a huge problem for tangible assets. While it’s a long and arduous process, the laws are clear about what happens to bank accounts, retirement accounts, homes, etc. But it’s a different story with digital assets. Only 20 states have passed a version of the Revised Uniform Fiduciary Access to Digital Assets Act, or RUFADAA. The RUFADAA was written by the Uniform Law Commission to create a legal process for fiduciaries to deal with digital accounts after a death, but there’s still a long way to go before it is enacted across all 50 states.
You may not know that the principles driving the legal issues around digital assets actually come from individuals’ 4th amendment rights to the expectation of privacy. However, while the law has kept up fairly well with technology to protect the privacy of computer users, they don’t cover how to give fiduciaries access to digital assets after an account holder’s death.
Many terms of service agreements (or TOSAs) become the default legal solution for digital assets, but while they have healthy privacy protections, their allowances for fiduciary access varies. Most TOSAs state that only an account holder is allowed to access the account. Many go a step further, saying that sharing a password is in direct violation of the agreement. That’s less than helpful for a fiduciary trying to close an account after the owner’s death.
So what can you do? First, check the Uniform Law Commission’s website. They track what states have enacted or introduced the RUFADAA. If your state has passed the Act, you may be able to work with your estate planning attorney to make provisions for your digital assets in traditional estate planning documents like wills, trusts or powers of attorney.
If not, you can contact service providers (or in some cases, just do a Google search) to find out their policies. You should definitely create an inventory of your digital assets, just like you would for tangible assets, and include the service provider’s policy and any steps you’ve taken to pass the asset on to heirs.
While the RUFADAA has not yet been introduced in Massachusetts or New Hampshire, we at Family Estate Planning Law Group continue to look into the existing options as you plan for your digital estate. For more information on Family Estate Planning Law Group and our unique process, explore our website and contact us to schedule your consultation today!
Reference: Wall Street Journal (April 25, 2016) “Vonnegut: The New Estate Planning That’s Critical for Clients”