Because the Internet is more and more a fundamental element of our lives, it is important to consider digital assets and elements as part of your estate planning. Think about it. You may use social media platforms like Facebook, LinkedIn, twitter, Instagram and more. You may also have banking or other financial relationships that are online only with no brick and mortar branch to visit. You may receive bills electronically only, and not have any paper record of your account available for others to easily find. Further, you may store documents, data, pictures and more through cloud computing and online data storage. For these reasons, there is great value in being able to manage and control (as well as find) these online accounts, files and profiles, and have them managed in accordance with your wishes upon your death.
Unfortunately, the law has not caught up with technology, and there is no universal standard pertaining to planning for management and use of digital assets in the estate planning and probate contexts. Progress is being made, however, via the Revised Uniform Fiduciary Access to Digital Assets Act (2015) (“RUFADA”) drafted by the National Conference of Commissioners on Uniform State Laws. Essentially, this group develops what it believes to be laws (or revisions to laws) that cover nationwide legal issues so that state legislatures can review and adopt the laws (or revisions) to help provide for a uniform, national standard where such standard may be appropriate. In 2015, the Commission adopted RUFADA and recommended that each state legislature review the Uniform Act and adopts it as the law in their respective state. As of this writing (January 2017) it appears that approximately twenty states have adopted RUFADA in some form or fashion, and several others have introduced legislation to adopt RUFADA in their own state. Many states, including Georgia, have not taken any action on RUFADA.
In a nutshell, RUFADA does three things:
1. It allows a custodian of digital assets to provide an online tool that allows the user to name another person to have access to that user's digital assets with the custodian, or have the authority to direct the custodian to delete such digital assets, and makes the user's instructions legally enforceable.
2. It provides that if the online custodian does not provide the prior-planning option (see above) or if the user declined to name another as his or her authorized agent, the user may then give legally enforceable directions for the dispositions of the digital assets via a Last Will and Testament, a power of attorney, or certain other written records.
3. If the user failed to take advantage of options in items one or two above, RUFADA would direct that the online custodian's terms of service for the user's account would control, and determine whether the user's fiduciary (meaning the agent under a power of attorney, an executor of a will or trustee of a trust, for example) could access the digital assets. If the terms of service do not address fiduciary access, then the default rules of RUFADA would control.
As you can see, uniform standards like those proposed in RUFADA would be very beneficial in the estate planning and probate process. But, until more states review and adopt these provisions, folks should not neglect some simple steps now relating to digital assets. Here are a few things to consider:
Social Media Profiles
Some social media platforms have provided options for users relating to the disposition of the profiles upon the user's death, or after a period of inactivity. Facebook, for example, has developed a tool to allow a user to designate a legacy contact. The legacy contact would be able to manage the profile (to an extent) after the user's page is memorialized, and can also, when given permission by the user, have the ability to download a copy of what was shared on Facebook. Read more here.
Likewise, Google has created an online tool, called the inactive account manager, which is a way for a user to share parts of their account data, as well as notify a trusted person if their Google account has been inactive. Here, if you have not logged into your Google account for a designated period of time, Google will send your trusted contact a notification. The user can choose what Google service data their trusted contact can see and access, or can opt to have the account deleted. Read more here.
LinkedIn will close a user's account and remove their profile after being notified of the user's death, based upon their ability to verify the information. Read more here.
Financial Assets with Online Institutions
If you bank or invest electronically, especially with an institution that works entirely online and for which you don't receive any paper records, be sure to document the type of accounts you have, the account number, and the institution that maintains custody of those assets. Be sure that your fiduciary will be able to find a record of those assets when needed. This is sound advice for traditional accounts at banks, credit unions and other institutions as well.
With bills and invoices routinely sent exclusively via email now, making sure that your fiduciary can access your email can be very helpful to make sure that accounts are located and paid, and that service is not interrupted needlessly for family members. Be sure that a trusted person knows how to access your email and these accounts, if needed.
Intellectual and Other Property
You may own domain names and other assets including copyrights, trademarks, patents, websites and more. Making sure you have an inventory of these assets can be helpful for your executor when settling your estate, and can be helpful for your surviving family members and business partners as well. Be sure that your fiduciary can find the inventory of these assets when needed.
What to do now? Recordkeeping
Perhaps it is ironic that one of the simplest ways to presently help address our digital assets is in the form of good old fashioned paper recordkeeping. Right now, you can create an inventory of accounts, social media profiles, email accounts, online storage, and other digital assets, etc. with instructions for your fiduciary as to how to access these items and accounts. Keep that information with your Will and other planning documents, in a location that will be safe from theft, fire, smoke and water damage. And let your fiduciary know to look for it if the time arises.
In the future, perhaps planning for our digital lives will become simpler. The law is slow to evolve, but it is slowly evolving. Stay tuned.
Photo credit: Farzad Nazifi via Unsplash.