According to one recent study, Americans estimate that they have, on average, $55,000 in digital assets – from photos and gaming systems to trade secrets and profitable blogs. As is so often the case, however, the legal system continues to drag slowly behind the realities of our tech-driven lives, leaving grieving family members the responsibility of battling mega-companies like Facebook or Instagram to retrieve their loved one’s photos and messages.
The answer to this conundrum lies in ensuring digital assets are properly addressed by a comprehensive estate plan, as well as in expanding the definition of the fiduciary role to include access to digital assets in the event of a death.
Redefining the executor’s role
When a person dies, it becomes necessary to transfer that person’s assets to whoever is named as their beneficiary in the will or trust agreement. Standard language in a last will and testament has always addressed the distribution of a decedent’s, or the deceased’s, real property and personal property separately. Personal property often passes in shares or portions to the person’s relatives or close friends.
When the executor reviews the language of the will, it is generally presumed that personal property includes automobiles, clothing, furniture, jewelry or the family pet. Not until recently did the concept of digital assets creep into the conversation. Unfortunately, digital accounts are thriving despite the scarcity of legal guidance available to families attempting to handle virtual property upon the death of the account holder.
In a typical estate administration sequence, the executor would use his fiduciary powers, or the powers to act on behalf of the deceased, to access the decedent’s accounts, arrange for a deed transfer, speak with financial professionals on behalf of the estate and perform any other tasks necessary to carry out the wishes set forth in the will.
Since most wills and state fiduciary laws do not include digital accounts within the purview of the fiduciary role, these assets are not accessible to the executor, and web spaces belonging to the deceased are left to languish indefinitely. Oftentimes, family members are required to petition Facebook to deactivate an account, a lengthy and laborious process that can cause unnecessary frustration.
One possible solution: Changing state laws
The effects of an inaccessible Facebook, Twitter or Instagram account can quickly become devastating for surviving family members. For Facebook accounts especially, loved ones are forced to stand by while the deceased’s page is flooded with comments, memories or, in some cases, negative posts about the account holder.
Unfortunately, most terms of service plainly state that only the account holder can access the account, and even a named executor or administrator of an estate can be denied access without express written language granting permission in the person’s will or estate plan.
In an effort to curtail this unintended consequence, the National Conference of Commissioners on Uniform State Laws met recently to draft a model Uniform Fiduciary Access to Digital Assets Act. This act, which has not yet been ratified by any states, is designed to address the legal brick wall between an executor and a decedent’s online accounts.
The act’s highlights include the following, which could prove helpful in eliminating this problem:
- Unless the deceased’s will states otherwise, personal representatives are permitted to access electronic communication, provided the communication is not otherwise privileged or protected;
- Any provision in a terms of service agreement that limits a fiduciary’s ability to access the account is considered void as a violation of public policy;
- Custodians of the digital asset, such as a Facebook or Twitter account, are required to comply with requests for access or deactivation by the fiduciary within 60 days;
- Custodians of the digital asset must provide fiduciaries with access to passwords and login information upon request.
In the meantime …
Ratification of this act is still a long way off, so what can digital account holders do in the meantime?
Digital estate planning is a blossoming legal niche and one you should think about implementing if you are concerned about the ownership of your digital assets upon your death. Of course, contemplating our own demise is never a comfortable topic. However, a quick meeting with a competent digital estate planner can save your family and beneficiaries a huge amount of effort and stress in the long run, particularly if you have valuable online property.
With a comprehensive digital estate plan, you can ensure your passwords, login information and all digital proprietary information pass safely into trusted hands, thereby protecting your family from the unpleasant experience of combatting online companies during a time of grief and loss.
Stephanie Reid obtained her J.D. from Regent University School of Law and her Bachelor of Arts degree from Florida State University. After two years in private practice, Stephanie is excited to open her own law firm, Stephanie Reid Law, on July 1. Her practice will offer innovative web-based legal services for estate planning, family law and business clients. Stephanie also volunteers her time serving children engaged in family court proceedings, including those involved in the foster care system. She is admitted to practice law in Delaware and Maryland, and lives in Southern Delaware with her husband and two young sons.