I had an interesting talk with my brother after reading Facebook’s updated policy about digital assets. Times have changed considerably from keeping files exclusively in paper format! Today, digital assets / electronic files have replaced checks, bills, photos and so much more, in many homes.
After contemplating the fate of accounts held in the person’s name vs. the “account’s name” with my brother, I decided it was time for me to research further developments on the “digital scene” and to report what I uncover.
I read that laws governing fiduciary access to digital assets are slowly changing. The Uniform Fiduciary Access to Digital Access Act (UFADAA), the Stored Communications Act and the Computer Fraud and Abuse Act seek to provide personal representatives access to digital assets, protect a user’s privacy, and prevent unauthorized access to a user’s digital asset.
This gets confusing, for we lay people. Who and when people may access our accounts is our choice, right? Not always, is the answer!
I read in the UFADAA that is possible to defer to an account holder’s privacy choices when these choices are written/documented in a will or trust. For online accounts, it is possible, IF there is an act specifying this choice, separate from the “general terms of service agreement” by the online provider. **Caution, many service agreements state the agreement is tied ONLY to the USER and some state the rights are NON-TRANSFERABLE. Read those service agreements – no more hitting “accept”, “accept”!
If the service agreement is tied to the user only, what impact does this have for us? This comes into play when executors attempt to gain access to online accounts after we’ve transitioned from life. Consider bill paying … if this is done from your personal account and is not transferable, how might your loved ones even know what bills need to be paid, not to mention how to pay them? Sobering, isn’t it?
I also learned the UFADAA was passed in 2014, yet each state must enact this through the state legislation process. SO, if your home state has not brought up and passed this legislation, the Act does not apply.
YIKES! Where does this leave us? In this day and age, with so much of our lives involving online accounts for any aspect of our lives, identifying all hardware, software and online accounts (from Apple to Zillow!) is a must! **Reminder, personal and business life comes into play here. Remember to consider all business activities where you have a user name and a password, when you are recording your personal accounts!
Next, create a plan allowing access to these accounts. How would you like to “inventory” these accounts, user names, passwords?
Finally, incorporate everything into your estate planning documentation. Relay the information about your accounts, access and consider appointing a “Digital Asset Trustee/Executor” or a “Digital Asset Agent” who is “tech savvy”. You’ll want someone who has knowledge or familiarity with digital assets to deal with any issues that may arise.
Now more than ever, consultation with a knowledgeable and caring estate planning attorney will give you and your loved ones peace of mind. Protect your assets and honor your wishes. Take empowered action!
For help getting started, The Living Planner offers a variety of ways to get started on the Offerings page: https://thelivingplanner.com/the-living-planner-offerings/
May you live life fully, Lynn