A recent article in Investment News asked Financial Planners to consider when a client dies who will get their airline miles? Who will control their Facebook page or social media accounts? What about their on-line access to bank accounts, utility bills or even cryptocurrencies? Would all their digital photos of loved ones and friends be lost forever? And what about all those credit card points they have been saving for a long vacation? Are they lost as well?
These questions may initially sound trite, but as our digital lives have expanded, these issues are becoming an important part of a person’s estate plan. Digital rights ownership may be a new consideration on the planning horizon, but it can be an emotionally and financially critical one. Today, few wills address these issues, and therefore, leave the ultimate disposition up to the Terms of Service of each website. (And of course, each of us has thoroughly read through those terms before hitting the “I Agree” button when signing up.)
Initially, states tried to address these issues by passing laws giving the executor of the Estate access to all digital accounts. This approach ran into legal troubles as some people felt such access was a violation of their privacy. Lawsuits were filed fighting the laws and preventing executors from seeing private emails and texts.
To add clarity to the situation, many states passed the "Revised Uniform Fiduciary Access to Digital Assets Act" (RUFADAA), starting in 2017. As of the time of this writing 40 states have now enacted this law and it is pending in 5 more. RUFADAA allows the executor or another fiduciary appointed in the will to have access to any electronic or digital sites “necessary” to settle the estate. These necessary sites include those with financial assets, such as shopping accounts, automatic bill-paying and on-line banking. However, what it does not provide for is access to texts, emails, or social media. For the executor to have access to those sites it must be clearly itemized in the will.
Investment News recommends two crucial steps for you to take right now:
1. Ensure your will includes your intent for the executor or another named fiduciary to have access to digital accounts, details how broad those permissions are, and gives your wishes for disposition. For example, can the named person see all the tweets, emails and private personal information, or does access only extend to closing such accounts? What accounts are covered by the permissions listed?
2. Ensure that you complete another document giving more specific instructions (i.e., to whom you wish to transfer your airline miles and hotel points), including usernames and passwords. This document should be signed, dated and preferably notarized, and kept with the will so the instructions are accessible to the executor. To facilitate this, it is recommended that you use one of the available services, such as Lastpass.com, that generate secure passwords for every site and store the entire array of information necessary for access. The document then only needs to include the master password to that service, plus instructions for any two-factor authentication. In that way the named fiduciary can easily open the entire vault containing current usernames and passwords. Since the password storage service is dynamic, it also allows clients to maintain security by changing passwords regularly, without having to redo the document.
Another estate planning tool we recommend for clients' important documents is our Digital Vault. Contained within our DreamCaster software, and available at www.personalwealthstrategies.com, the Digital Vault allows you to securely store legal, financial or personal documents all in one place. Given the proper permissions through your estate documents, your executor can then view your insurance policies, deeds and titles, company benefit packages and past tax returns with the click of a mouse.
In today’s digital world it is imperative your will address your cyber assets as well as your physical ones. If your current estate planning documents are silent on these points, it may be time for an update. Now is the time to contact your attorney or call our office with your questions.