Every day, 77 percent of Americans go online, according to a recent Pew Research Center survey, and most of us maintain at least some kind of digital data in the cloud (whether or not we are aware of it). We save emails, post to social media, and store photos in online albums.
All of this digital information has created a new issue for you, your heirs, your beneficiaries, and the technology firms that hold your assets. The key concerns are maintaining your privacy and security and determining who can legally access this information upon your incapacity or death.
The Illinois Revised Uniform Fiduciary Access to Digital Assets Act provides a legal path for fiduciaries (such as your executor, trustee, or attorney-in-fact) to access and manage your digital assets and electronic communications if you die or become incapacitated. A fiduciary can access your digital assets if you’ve given proper consent or if a court approves. Other states have similar laws.
What are digital assets?
Digital assets and electronic communications include your online accounts, your social media, online photo storage, a personal website or blog, URLs you own, and more.
What’s the concern?
Even though some digital assets and electronic communications have no monetary value, you may want some control over what happens to them when you die. Think about whether you want them deleted, modified, or distributed to family.
Until the law was enacted, it was difficult to know who had a legal right to access these accounts and files. Some user agreements indicate that these as- sets are non-transferrable, meaning they are either untouchable or can simply be deleted when you die.
Beyond privacy issues, some digital assets and electronic communications do have value. Frequent flyer points are often transferrable after death, credit card points can be redeemed, and URLs may be saleable.
What’s your legal protection?
Under the law, your family members, executor, trustee or agent can’t access such assets and communications just because of your relationship. Other users, including family members, need express authorization to access your accounts and information.
How can you ensure your executor and/or family have access?
Insert a provision in your living trust and/or will that grants your trustee and executor the authority to access digital assets and electronic communication accounts. If you want someone other
than your trustee or executor to access such assets, you can appoint a special fiduciary for that specific purpose.
Add language that grants your agent under your power-of-attorney authority to act on your behalf during your lifetime (powers of attorney die with you).
It’s a good idea to inventory your digital assets and provide your executor, trustee, and agent with the necessary passwords. Some online password managers can be set up to transfer passwords to a representative on your death.
Designate a digital “guardian” in any online tools that offer such a feature, such as Facebook’s “legacy contact” and Google’s “account trustee.” This is someone who will look after your account after you’ve died. Be aware, however, that under the uniform law any such settings will override conflicting instructions you leave in your will or trust. If you want to prohibit disclosure, state that clearly in your estate planning documents.