Keying into your digital assets: Revise your estate plan to account for online documents

by Adler Pollock & Sheehan P.C.

In the not-so-distant past, you were likely to keep a copy of your will, power of attorney and other vital estate planning documents locked in a fire-resistant vault or file cabinet, with copies in your attorney’s office. You also probably kept all your bank statements and other financial records filed away in your home. These paper documents weren’t always easy to access, but were generally secure.

However, in this digital age, it’s more likely that you’re storing legal documents and financial statements in online ledgers, including email transmissions from banks and other financial institutions. This reduces paper clutter, but raises a host of other pre- and postmortem issues.

More questions than answers

There are numerous questions to answer concerning your digital documents and social media accounts, such as:

  • How will your electronic records be handled after your death?
  • Can family members obtain passwords and access to your accounts?
  • Will the bills you’re automatically paying online continue to be paid?
  • What happens to other information you consider to be confidential? 

Unfortunately, with the laws in this area still evolving, the answers often aren’t clear. For example, a power of attorney may be thwarted by restrictive user agreements for social media sites. Another complication is that legal remedies vary from state to state, while many jurisdictions haven’t enacted any legislation for these critical issues. One possible solution, the Uniform Fiduciary Access to Digital Assets Act (UFADAA), has yet to be embraced.

UFADAA at an impasse

UFADAA puts responsibility for handling most matters squarely in the hands of the fiduciaries. This proposed law, which culminated a two-year process by the National Conference of Commissioners on Uniform State Laws, gives executors, administrators, trustees, conservators/guardians and agents acting under a power of attorney authority to access the digital assets of a deceased person. For this purpose, “digital assets” include domain names, Web pages, online accounts, and electronic communications, such as email and social media messages.

A modified version of UFADAA was enacted in Delaware in 2014 and has been introduced in more than half of the states as of this writing. The National Academy of Elder Law Attorneys and AARP have also endorsed the law. But it faces staunch opposition from social media giants like Yahoo and Facebook, as well as the American Civil Liberties Union. At this point, enactment of the law in most states appears remote.

Practical steps to take now

While lawmakers hash out the details of UFADAA, you can take steps today to help your family access your digital accounts after your death:

Compile a list of accounts and passwords. Provide email addresses, usernames and passwords to one or more relatives. Because passwords often change, update the list periodically.

Rely on a password manager. As an alternative to a list of passwords, you might use a password manager to handle accounts. You’ll find this particularly useful when you can’t remember the latest password change or where you jotted down the information. With this method, a single password grants access to all identified accounts.

Review social media agreements. Read the fine print about your participation in social media sites and other online accounts. If you’re not satisfied with the terms upon closer inspection, you might terminate your account. Be especially wary of restrictions on the use of a power of attorney.

Find a storage unit. Another way to keep track of information is to use a digital storage unit. There are online services available, or you could save information using encrypted files on your computer or other device such as a thumb drive. Wherever it’s kept, be sure to share the location of the information, and the password for the files, with a trusted individual who’ll need to access the data on your behalf.

Coordinate estate planning documents. Legal documents like a will and durable power of attorney will be strengthened if they’re revised, where necessary, to accommodate digital assets. If these documents aren’t already in place, now is a good time to have them drafted.

Bring your estate plan into the 21st century

Even though you can’t physically touch digital assets, they’re just as important to include in your estate plan as your material assets. Your estate planning advisor can help you account for any digital assets in your estate plan.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Adler Pollock & Sheehan P.C. | Attorney Advertising

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