The great digital beyond

The great digital beyond

A friend recently told me of the challenge she faced sorting through her aging parents’ belongings to prepare their home for sale.

Her father had died years ago and her 94-year-old mother had been living in an assisted-care facility for more than a year. Most of the items of sentimental or personal value had already been distributed to her siblings. What remained were her parents’ personal archives — letters, photos, employment/financial/legal/health records, all tangible, physical objects that, once gone, would be gone forever.

In the internet age, personal archives are no longer limited to the tangible. In fact, much of one’s personal archives is now digital — emails, texts, photos, videos and social media accounts. And there’s a lot more content generated and stored than ever before. Some is saved on personal storage space, such as a computer hard drive. Other material lives in the cloud in services like Facebook, Google Mail and YouTube. In most cases, that content is protected by some kind of password.

So what becomes of all of that information when someone dies? Does it remain online forever? Can it be altered, deleted or downloaded, and if so, by whom? And how do these digital artifacts represent your life and legacy?

These questions inspired Evan Carroll and John Romano to create the website thedigitalbeyond.com to address these needs and concerns. Together they wrote the book “Your Digital Afterlife” in 2011. Since that time an entire industry has emerged to help people plan for managing their digital legacy. Thedigitalbeyond.com lists dozens of such online services. Some are free while others are fee-based.

Knotifyme.com, for example, “answers the question, ‘What happens to all my online accounts if I get amnesia, Alzheimer’s or if I leave from this world?’ With knotify.me you set future notifications to be sent to your family and beloved people or to yourself, ensuring that nothing of your digital life will be wasted (and) transfers your online property/heritage (urls, domain names, e-mail & social network accounts, etc.) to whomever you wish to continue it in the future!” You can sign up for this free service through your Facebook, Twitter or Google accounts. In short, according to its tagline, Knotifyme.com “manages your digital heritage.”

To address financial matters, consider Legacyarmour.com, which describes itself as “a secure asset protection platform where you organize your important information in encrypted vaults, and …. automatically deliver it to your designated recipients on a scheduled date, or in case of your death or incapacitation.” It is a fee-based membership service with different levels of coverage and prices depending on what you want.

The rapid growth of the web has outpaced the law in the realm of the digital afterlife. It wasn’t until 2015 that the Uniform Law Commission, a nongovernment organization, created the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). It has since been adopted by 40 states and been introduced in five more this year. As its name suggests, RUFADAA “allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic communications such as email, text messages, and social media accounts unless the original user consented in a will, trust, power of attorney, or other record.”

Some online services have their own policies for providing access to a person’s account after he or she dies. Facebook allows users to designate a “Legacy Contact” who is legally permitted to enter someone’s account to post, respond to friend requests, and update profile and cover photos. The Legacy Contact may also be given the power to download an archive of the photos, posts and profile information in that account. Facebook users can also simply opt to have their account permanently deleted after their death. Google offers an Inactive Account Manager feature that allows users to share parts of their account data or notify someone if they’ve been inactive for a certain period of time.

One important and often repeated piece of advice is to never put usernames and passwords for any online accounts in your will, as it becomes a public record once it is entered into a probate court file.

It is never too soon to start estate planning, whether it be for tangible assets or digital ones. It may be well worth your time to investigate the policy options of your online account services and perhaps even avail yourself of some of the many digital afterlife services available today.

Cerise Oberman, SUNY Distinguished Librarian Emeritus, retired as dean of Library & Information Services at SUNY Plattsburgh. She can be reached at cerise.oberman@plattsburgh.edu. Tim Hartnett is associate librarian at SUNY Plattsburgh, Reach him at tim.hartnett@plattsburgh.edu.

Planning for a Digital Legacy

Planning for a Digital Legacy

Digital property is increasingly becoming a more important part of estate planning. Individuals should consider their digital property, in addition to their tangible assets, when finalizing and reviewing their estate plans.

A person’s digital property and electronic communications are referred to as “digital assets” and the companies who store those assets on their servers (Google, Facebook, Apple, etc.) are referred to as “custodians.” Digital assets are typically governed by terms of a service agreement — not by property law. These service agreements are unhelpful when a user passes away or becomes incapacitated. As the number of digital assets we have increases daily, so does this growing issue. To address this, many states have adopted the Revised Uniform Fiduciary Access to Digital Assets Act (UFADAA), which allows a fiduciary the legal authority to manage another’s property and specifically allows Internet users the power to plan for the management and disposition of their digital assets.

Digital assets should be included in your normal estate planning and wealth transfer conversations with your estate planning attorney and family members. Your estate planning attorney may create an amendment to your existing will, trust, or power of attorney to give the designated agent the authority to direct or dispose of your digital assets. This amendment may take the form of a Virtual Asset Instruction Letter, which allows you to list accounts, instructions for those accounts, and the person(s) designated to access them.

Digital assets, while not always tangible, can be very valuable. For example, airline miles and hotel points have obvious monetary value, while photos, emails, and other creative works have sentimental value. As a result, it is important for individuals to have a plan for photos, email and social media accounts, financial accounts, and online memorabilia and documents.

Please contact us to request additional resources on creating a digital estate.

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How to settle your loved one’s digital estate

New Law Affects Estate Planning for Digital Property in Indiana, Pending in Illinois and Ohio

The Revised Uniform Fiduciary Access to Digital Assets Act (or “UFADAA”) will take effect in Indiana on July 1. The new law addresses the rights of a fiduciary, such as a personal representative, trustee, attorney-in-fact or guardian, to access digital property, such as online financial accounts, emails, texts, social media accounts and online document and picture storage. UFADAA will replace Indiana’s current digital access statute, which applies only to personal representatives.

To date, UFADAA has been adopted by 16 states and is currently pending in approximately 16 more states, including Illinois and Ohio.

Individuals who wish to take full advantage of the features of UFADAA will need to take action, including updating their estate planning documents, as described below. Failure to take action may result in the loss of access to digital property (or even the deletion of digital property) upon a person’s death or incapacity.

Online Tool

Under UFADAA, a company that stores digital property (referred to as a “custodian”) may provide an online tool that allows the owner of the digital property (referred to as the “user”) to specify whether the user’s digital property should be disclosed to others and, if so, to whom. If a custodian does not make an online tool available to its users or if a user does not take advantage of a custodian’s online tool, then the following rules will apply.

Estate Planning Documents

A user may include provisions in his or her will, trust or power of attorney document to either allow or prohibit fiduciary access to the user’s digital property. Adding express digital access provisions to wills, trusts and power of attorney documents will be beneficial for most individuals since it may be cumbersome to complete the online tool for each and every digital asset and since not all custodians are likely to provide an online tool, at least not initially.

Terms of Service Agreements

If a user provides no instructions, either by using an online tool or by adding digital access provisions to his or her estate planning documents, then each custodian’s terms of service agreement will govern whether the user’s fiduciaries will have the ability to access the user’s digital property and a custodian’s terms of service agreement may prohibit fiduciary access completely. For this reason, it will be important for most individuals to take action, either by using online tools or by adding digital access provisions to estate planning documents (or both).

Default Rules

If a user does not use an online tool or add specific digital access provisions to his or her estate planning documents and if the custodian’s terms of service agreement does not otherwise restrict fiduciary access, then the following default rules will apply.

  • Personal Representative. A deceased user’s personal representative (i.e., executor or administrator) will be permitted to access the deceased user’s digital property for purposes of carrying out the personal representative’s duties but will not have access to the content of the deceased user’s electronic communications, such as emails and text messages, absent express authority in an online tool or a will.
  • Trustee. If a user creates a trust and the user’s digital property passes to the trust, the trustee will be permitted to access the user’s digital property for purposes of carrying out the trustee’s duties but will not have access to the content of the deceased user’s electronic communications, such as emails and text messages, absent express authority in an online tool or in the trust agreement.
  • Attorney-In-Fact. If a user authorizes another person (called an “attorney-in-fact”) to act for the user under a power of attorney document, the attorney-in-fact will be permitted to access the user’s digital property for purposes of carrying out the attorney-in-fact’s duties but will not have access to the content of the deceased user’s electronic communications, such as emails and text messages, absent express authority in an online tool or in the power of attorney document.
  • Guardian. If a user becomes incapacitated and a guardian is appointed to manage the user’s financial affairs, the guardian will have very limited authority with respect to the user’s digital assets, absent express authority in an online tool or other estate planning document. The guardian may request that the user’s online accounts be suspended or terminated but otherwise will have no access to the user’s digital property without a court order that is issued after notice to interested persons and a hearing.

Taft’s private client attorneys will send an additional update as things proceed in Ohio and Illinois. In the meantime, we encourage you to contact us with questions about UFADAA or if you wish to take advantage of its provisions.

State-by-State Digital Estate Planning Laws

State-by-State Digital Estate Planning Laws

Though most Americans have a substantial amount of “digital property” or “digital assets” (such as email accounts, social media accounts, and blogs), federal legislation regarding digital property does not yet exist.

Most states rely on the particular terms of service or privacy policy of the service that manages the asset (such as Gmail, Facebook, or Tumblr) to determine what should be done with the particular asset when the owner dies.

That said, 28 states have stepped in to create laws that will protect people’s digital assets and give the person’s family the right to access and manage those accounts after the owner has died. Plus, The Uniform Law Commission created the Fiduciary Access to Digital Assets Act, which is aimed to allow executors, trustees, or the person appointed by court (“conservator” or “fiduciary”) complete access to deceased’s digital assets. While it’s not yet the law of the land, it shows there’s some forward momentum and progress regarding this issue.

If your state is not listed below, that means that your state has not yet passed laws to address these issues. As always, it’s a good idea to consult a licensed estate attorney in your state to get a better sense of your state’s laws, and how you can create a digital estate plan in your state.

Alabama

Law: HB 138 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [See the full Bill here]
Status: Signed by the Governor on May 11, 1017; Effective January 1, 2018

Law: HB 108 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [See the full Bill here]
Status: Signed by the Governor on August 2, 1017; Effective October 31, 2017

Law: SB 1413 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications.
Status: This was approved by the Governor and filed with the Secretary of State on May 11, 2016

Arkansas

No legislation.

California

Law: AB-691 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications.
Status: This was approved by the Governor and filed with the Secretary of State on September 24, 2016.

Colorado

Law: SB 16-088 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [See the full Bill here]
Status: This was approved by the Governor and filed with the Secretary of State on April 7, 2016.

Connecticut

Law: SB 262 Public Act No. 05-136
Description: Executors may access email accounts. The state requires a death certificate and documentation of the executor’s appointment before the estate’s representative can see the deceased person’s emails or social networking accounts.
Status: Effective October 1, 2005

Law: HB 345 Fiduciary Access to Digital Assets and Digital Accounts 
Description: From the original synopsis: “Recognizing that an increasing percentage of people’s lives are being conducted online and that this has posed challenges after a person dies or becomes incapacitated, this Act specifically authorizes fiduciaries to access and control the digital assets and digital accounts of an incapacitated person, principal under a personal power of attorney, decedents or settlors, and beneficiaries of trusts.”
Status: Effective August 12, 2014

Law: SB 494, Chapter 740 Florida Fiduciary Access to Digital Assets Act
Description: This law grants fiduciaries legal authority over the deceased’s digital assets and accounts. Here’s the official summary: “Authorizing a user to use an online tool to allow a custodian to disclose to a designated recipient or to prohibit a custodian from disclosing digital assets under certain circumstances; providing procedures for the disclosure of digital assets; authorizing the court to grant a guardian the right to access a ward’s digital assets under certain circumstances.”
Status: Signed into law on March 10, 2016; Effective July 1, 2016

No legislation.

Law: SB2298 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Effective July 1, 2016

Idaho

Law: SB 1303 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read: Statement of Purpose | Full Bill]
Status: Effective July 1, 2016

Illinois

Law: HB 4648 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Effective August 12, 2016

Law: SB 253 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications..
Status: Effective March 23, 2016

No legislation.

No legislation.

Kentucky

No legislation.

Louisiana

No legislation.

No legislation (LD 1177 Maine Uniform Fiduciary Access to Digital Assets Act was deemed “dead” on March 10, 2016)

Maryland

Law: SB239/HB507 Maryland Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications..
Status: Effective October 1, 2016

Massachusetts

No legislation.

Law: HB 5034 The Fiduciary Access To Digital Assets Act
Description: Provides for fiduciary access to digital assets; and to provide for the powers and procedures of the court that has jurisdiction over these matters. Genealogy writer Dick Eastman sums it up best on his blog: “The new law specifically states that all digital assets are bequeathed from one person to the next. It also allows digital information, including social media and website accounts, to be treated like other assets after the owner dies.” [Read the full Bill]
Status: Effective June 27, 2016

Law: Minnesota Statutes Chapter 521A Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Full Bill | Attorney Jim Lamm’s blog post about the law]
Status: Effective August 1, 2016

Mississippi

No legislation (SB 2478 Revised Uniform Fiduciary Access to Digital Assets Act Died in Committee on Feburary 23, 2016)

Missouri

No legislation.

No legislation.

Nebraska

Law: LB 829 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Signed by the Governor on April 19, 2016; Effective January 1, 2017

Law: SB 131
Description: Establishes provisions governing the termination of a decedent’s accounts on electronic mail, social networking, messaging and other web-based services.
Status: Effective October 1, 2013

No legislation.

Proposed law: SB 2527 Uniform Fiduciary Access to Digital Assets Act
Description: Authorizes executor or administrator to take control of online accounts of deceased person. [Read the full Bill]
Date introduced: September 12, 2016
Status: In progress

No legislation.

Law: AB A9910A
Description: Provides for the administration of digital assets; authorizes a user to use an online tool to direct the custodian to disclose or not to disclose some or all of the user’s digital assets, including the content of electronic communications; provides that this article does not impair the rights of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user; provides for a procedure for disclosing digital assets.
Status: Effective September 29, 2016,

Law: SB 805 Fiduciary Access to Digital Assets
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Effective June 30, 2016

Proposed law: HB 1455
Description: A bill for an act to create and enact a new chapter to title 34 of the North Dakota Century Code, relating to internet accounts and workplace privacy of social media accounts.

Status: Failed April 9, 2013
Full text: Click here for full text of the North Dakota law

No legislation.

Name of law: HB 2800
Description: An act relating to probate procedure; authorizing an executor or administrator to have control of certain social networking, micro-blogging or e-mail accounts of the deceased; providing for codification; and providing an effective date. Allows provisions in a will or a formal order to control access. [Read the full Bill]
Status: Effective November 1, 2010
Note: On January 19, 2016 SB 1107 Uniform Fiduciary Access to Digital Assets [Full Text] was introduced to the Oklahoma Legislature and is in progress. Whether this is meant to replace or ammend the previously enacted digital asset legislation remains to be seen.

Proposed law: SB 1554 Revised Uniform Fiduciary Access to Digital Assets Act
Description: “It allows a fiduciary, such as a personal representative, trustee or conservator, to access certain digital content within certain limits. It permits entities that hold electronic data to allow users to specify their wishes in the event they become inactive or when the entity receives a request for information. (If a user specifies, that trumps all other instructions, including a will.) The measure also permits fiduciaries to obtain a catalogue of digital communications, and sets forth a number of protocols for them, to cover a variety of situations, such as: when users consent to disclosure, or refuse, or fail to specify; or when disclosure has been ordered by a court.” [Source: Oregon’s Summary of Legislation, 2016]
Status: Effective January 1, 2017

Proposed Law: SB 518 Revised Uniform Fiduciary Access to Digital Assets Act, Amending Title 20 (Decedents, Estates and Fiduciaries)
Description: On August 23, 2012 HB 2580 [Full text of proposed Bill] was introduced amending Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes providing personal representatives power over decedent account on social networking website, micro-blogging or short message service website or e-mail service website. This appears to not have passed, making SB 518 a more recent attempt for executors and trustees to access digital assets after death [Full text of proposed Bill].
Date introduced: February 20, 2015
Status: This passed the House on November 18, 2015 and was referred to the Judiciary on November 18, 2015. The current status is unknown.

Law: Title 33: Probate practice and procedure, Chapter 33-27: Access to Decedents’ Electronic Mail Accounts Act, Section 33-27-3
Description: Executors may access email accounts. The state may require a death certificate and documentation of the executor’s appointment before the estate’s representative can see the deceased person’s emails or social networking accounts.
Status: Effective May 1, 2007
New Proposed Legislation: On April 29, 2016 HB 8125 Revised Uniform Fiduciary Access To Digital Assets Act was introduced, which appears to amend or replace their current Access to Decedents’ Electronic Mail Accounts Act. It is currently being held for further study.

Law: SB 908 South Carolina Uniform Fiduciary Access To Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Effective June 3, 2016

Law: HB1080 Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Signed by Govenor on March 6, 2017; Effective July 1, 2017.

Tennessee

Law: SB 326 Uniform Fiduciary Access To Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Effective July 1, 2016

Law: SB 1193 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Signed by the Governor on June 1, 2017; Effective September 1, 2017

No legislation. (Note: HB 383 Uniform Fiduciary Access to Digital Assets Act was introduced on February 18, 2016 and is currently in progress.)

No legislation.

Proposed law: SB 914
Description: Fiduciary access to digital assets. Enables a fiduciary to gain access to the digital accounts and digital assets of the person or estate to whom he owes a fiduciary duty upon making a written request to the custodian of the digital accounts and digitals assets and submitting proof of the fiduciary relationship.
Date introduced: January 7, 2013
Status: Unknown
Full text: Click here for full text of the proposed Virginia law

Law: SB 5029 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This provides a process for a digital asset custodian to disclose digital assetinformation when requested by a fiduciary who needs access to the information to fulfill fiduciary duties. [Read the final Bill]
Status: Effective June 9, 2016

Washington, D.C. (District of Columbia)

No legislation.

No legislation.

Law: AB 695 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This provides a process for a digital asset custodian to disclose digital assetinformation when requested by a fiduciary who needs access to the information to fulfill fiduciary duties. [Read the final Bill | Wisconsin Legislative Council Act Memo]
Status: Effective April 1, 2016

Law: SF0034 Uniform Fiduciary Access to Digital Assets Act
Description: This provides a process for a digital asset custodian to disclose digital assetinformation when requested by a fiduciary who needs access to the information to fulfill fiduciary duties. [Read the final Bill]
Status: Effective July 1, 2016

Though we make every effort to keep this list as up-to-date as possible, there may be information that’s not current. If you’re aware of updates or changes to digital asset legislation in any state, please let us know here.

P.S. You really should try out your own Everplan.

It’s really simple to set up, it’s free to try, and it can make a world of difference for your family if something happens to you. Set up your Everplan now.