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.

Include RUFADAA Provisions in Your Will to Protect Your Digital Assets

Include RUFADAA Provisions in Your Will to Protect Your Digital Assets

digital-asset

Today, no estate or disability planning is complete without providing for your “digital assets.” Even if you’ve never considered the notion of digital assets, you almost certainly possess them. Inadequate digital asset planning can frustrate the administration of your estate, lead to identity theft, and cause the loss of valued possessions. Have you ever wondered what happens to your Facebook profile or your vast iTunes library when you die? Can your personal representative compel access to your email or E-Trade accounts if
knowledge of the passwords dies
with you?

More and more of our daily tasks–not to mention assets with sentimental and/or financial value–are going digital. Broadly defined, a “digital asset” is any electronic record stored on, and retrievable from, an electronic device. This includes email accounts, online banking accounts, social media profiles; photographs, writings or other intellectual property stored on a hard drive or in the cloud; entertainment media purchased from iTunes or similar online marketplaces and websites and domain names. Digital assets can reside on your computer, cell phone, tablet, external hard drive or on the internet.

Upon death or disability, a will or power of attorney typically appoints a fiduciary (e.g., a “personal representative”) to attend to your assets and affairs. Such fiduciaries are tasked with accessing, managing, and transferring your assets–tasks that become considerably more difficult when the extent of, and passwords for, digital assets are unknown.

Providing fiduciaries with a periodically updated inventory of digital assets and related passwords, as well as with instructions regarding their management, termination, or disposition, has become a crucial part of modern estate planning. Assets may otherwise be lost, and personally identifiable information may float in cyberspace indefinitely, waiting to be co-opted by
identity thieves.
Such proactive approaches, however, are not always the end of the story. Various federal privacy and anti-hacking laws, and end-user agreements with online service providers, can create roadblocks for even a duly authorized fiduciary to legally access a decedent’s account. Google and Yahoo! for instance have been known to require separate legal proceedings before providing fiduciary access. Aside from the access question, end-user agreements also can raise questions about the ultimate ownership — and thus transferability — of digital assets.

These agreements may contain language that hosted content becomes property of the online custodian, or that media “purchased” online is actually merely licensed by a user until death. Review of end-user agreements, which are often assented to without a second thought, has also thus become an
important part of digital asset planning.

In March, Oregon became the first state to adopt the Revised Uniform Fiduciary Access to Digital Accounts Act (“RUFADAA”), effective January 1, 2017. RUFADAA now provides a mechanism by which fiduciaries under a will, trust, power of attorney, or conservatorship can compel access to, or the termination of, digital accounts pursuant to a statutorily defined process. RUFADAA also provides fiduciaries with legal cover from various computer-related laws that arguably prevented such access. RUFADAA gives discretion to online custodians to limit access to only such portions of accounts necessary to discharge a fiduciary’s obligations and allows custodians to impose a “reasonable administrative charge” for such access. RUFADAA imposes strict legal duties upon fiduciaries, and legal counsel should be consulted when seeking access under the new act.

RUFADAA will generally apply when fiduciary authority to access digital accounts has been explicitly granted under the relevant instrument (e.g., a will). Now is a good time to ensure that your testamentary documents, general power of attorney, and estate planning generally, adequately addresses your digital assets.

Adam Anderson is an estate planning attorney at Jordan Ramis PC. He can be contacted at 541-550-7900