Traditionally, the process of managing the affairs of a deceased loved one involves combing through the family member’s belongings, trying to piece together assets, investments, life insurance and other death benefits, bills and liabilities, as well as keepsakes, photographs, letters, journals, and other personal effects. As our personal finances and our personal lives are increasingly digitalized, this process is in the midst of significant changes. Filing cabinets and mailboxes are being replaced by personal computers and inboxes. Facebook, Instagram, Snapchat, and Twitter accounts have taken the place of physical photo albums, letters, and journals.
This is not the only difference, though. Unlike their tangible counterparts, this digital property is stored or maintained by various technology companies, subject to a terms of service agreement (TOS) between the user and the company. You likely know the TOS as that interminable fine print that you promised you had read in order to access one website or another. Until recently, these TOS could effectively block a user’s fiduciaries from gaining access to their accounts at death, leaving important information and sentimental property stuck in the cloud, with inconsistent legal recourse available.
In response to the legal morass, a consortium of representatives from the legal, tech, and banking industries came together to draft a model Uniform Fiduciary Access to Digital Assets Act setting forth the interacting authority of “custodians,” companies that maintain digital assets (e.g., Facebook, Google et. al.), “users,” a person who has an account with a custodian, and “fiduciaries,” including Personal Representatives, Agents, Trustees, and Guardians. Since its introduction in 2015, it has been quickly adopted by 41 states. In 2016, Maryland passed its version, the Maryland Fiduciary Access to Digital Assets Act (MFADAA). As a result, a new framework has begun to develop for estate planning and administration of these “digital assets.”
The “Online Tool”
MFADAA introduces the concept of an “online tool,” a service provided by custodians that allows a user to provide directions for the disclosure (or nondisclosure) of digital assets to third parties, before or after death. The online tool overrides any contrary provision of the website’s terms-of-service agreement (TOS). The online tool will also override any contrary designation in a will, trust, power of attorney, or other document.
Several popular platforms now provide some version of an online tool. Facebook allows its users to identify a “legacy contact” to manage their account after death. The legacy contact may also request that the account be deleted, or download a copy of all of the posts, photos, and other content that the user shared on Facebook.
Google allows users to select an “inactive account manager” to share items such as the contents of a Gmail and other Google accounts after a user has been inactive for a specified amount of time. After the account becomes inactive, the inactive account manager receives an e-mail notifying her that the user has chosen to share certain contents with them upon the account becoming inactive, and providing a link for the content to be downloaded.
Authorization of Fiduciaries
In the absence of an online tool, the user may allow or prohibit the disclosure of digital assets to a fiduciary in a will, trust, or power of attorney. A direction here will override a contrary provision in the TOS. Additionally, a user’s documents must specifically permit a fiduciary to access the content of “electronic communications,” a specific type of digital asset subject to the federal Electronic Communications Privacy Act, consisting of information sent or received by a user that are not readily accessible to the public , such as e-mails, texts, or direct messages.
If the user does not provide directions, either via an online tool or in his or her estate planning documents, the custodian’s TOS could apply to set default rules for who may access their accounts and under what circumstances, or to block a fiduciary’s access to the account entirely.
Procedure for Accessing Digital Assets
When seeking to access the digital assets of a decedent or principal under MFADAA, the fiduciary must provide the custodian with relevant documentation, which varies depending on the type of fiduciary and the information sought. In certain circumstances, such as when a personal representative is requesting the content of electronic communications, the custodian can even request a hearing and court order approving disclosure. Once the fiduciary provides the required information, MFADAA gives custodians discretion as to the method and extent of disclosure, ranging from full or partial access to the user’s account, to providing the fiduciary with a downloadable copy of the digital assets contained on the account.
Estate Planning for Digital Assets
While digital estate planning is still a new and developing concept, at least one of the traditional estate planning maxims clearly applies: A little planning now can help avoid delays and hassles later.
The most effective way to begin a digital estate plan is to complete the online tools for their most important online accounts. Similar to a beneficiary designation, the person designated in an online tool should be able to access the digital asset without providing letters of administration or other legal documentation. Additionally, online tools allow you to customize their wishes for each account (what is best for your Facebook account may not be best for your e-mail account). Advance planning for e-mail accounts is particularly important because most or all of this content would qualify as “electronic communications,” which otherwise requires specific consent to disclose.
Next, your estate planning documents should specifically authorize your fiduciaries to access their digital assets, including (if appropriate) electronic communications. This will act to allow your fiduciaries to access accounts where the online tool was not completed or not available.
As the inexorable digitalization of our everyday lives continues, estate planning and administration for our digital assets becomes more and more critical. Understanding the new frontier of digital estate planning will ease the administrative process and prevent your fiduciaries and loved ones from being locked out of crucial sources of information.