Most people give very little thought to their digital assets when drafting their will or estate plan. What do we mean by digital assets? Primarily, we mean access to emails, social media accounts, digital photos and frequent flyer miles. Some attorneys have started naming digital executors in documents, but did you know that the terms of service of data custodians may prevail over your estate planning documents?
Most states have adopted a law called the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in the last few years. This law allows executors and trustees to access data and digital assets at your death. But a key point in the law is that the terms of service agreements of custodians (think Google, Apple, Facebook, etc.) may overrule whatever is in your digital estate plan.
These terms of service agreements are the lengthy documents you are required to read and then check the box when signing up for the service. Does anyone remember the last time they actually read those terms? Most people have no idea what they agreed to, and it is very possible that you agreed that your accounts would terminate at your death. Even if you have provided passwords to your loved ones so they can access your accounts, they may technically be hacking into your accounts by accessing them.
Our best advice is threefold:
Use the online tools offered by your data custodians.
Most data custodians are making it easy to designate a trusted contact. Facebook lets you name a Legacy Contact and Google has an Inactive Account Manager option. Apple’s iOS system has a Legacy Contact option. If you have iOS 15.2 or later on your phone, you can take the following steps to name a Legacy Contact (note that these setup instructions from Apple were correct at the time of this writing but may change in the future):
1. Go to Settings, then tap your name.
2. Tap Password & Security, then tap Legacy Contact.
3. Tap Add Legacy Contact. You might be asked to authenticate with Face ID, Touch ID, or your device passcode.
After you designate the person, they will receive a notification. Your phone has a QR security key that you can provide to them. They will need that security key and your death certificate to gain access to your account. You can also opt to print the security key yourself to store within your estate plan.
Incorporate a comprehensive digital estate plan into your estate planning documents.
If you have not accounted for any digital assets in your estate plan, we recommend working with your estate planning attorney on incorporating a clear and binding plan for your digital assets. This should include an inventory of your digital assets and information on how to access them. In a world with data breaches and security threats around the corner, it is best to work with a professional and follow best practices to keep your information and data safe.
Not only should you have this incorporated into your estate plan, but you should also talk to your trusted contact or executor on exactly where your important information such as your estate plan, will, and trusts are located (whether stored digitally or printed) and how to access them.
Talk to your trusted contact or executor about your digital files and where you keep important documents.
One of the most important steps that people often overlook is having a quick conversation with your trusted contact or executor about where you keep your most important passwords, files or keys. This goes for physical as well as digital assets that are important to you. We do not want to leave our heirs a treasure hunt to solve. We want them to know where the treasure is buried and how to find the keys to unlock it. Keep what is important to you organized and updated, and make sure your trusted contact or executor knows where to look.
These are a few relatively useful ways to make sure your digital assets transfer at your passing, and that your designated trusted contact or executor will have the means and ability to access. If you have any questions regarding your digital assets or how best to incorporate into your estate plan, contact your advisor who can help assist you in planning for your digital assets and connect you to trusted estate planning attorneys.
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