We all have a plethora of online accounts and digital assets: email accounts, social media accounts, financial accounts, cloud storage accounts, digital photo accounts, music accounts, gaming accounts, website management and hosting accounts, dating sites, gaming sites, and so on. Some of these accounts make it easy to deal with the account when you die or become incapacitated – Facebook, for example, has a very nice feature that allows you name a “legacy contact” in the event of your death to manage your account after your death. Another example: Google (e.g., Gmail, Picasa, Drive, Hangout, etc.) has an “Inactive Account Manager” in your Google Account settings where you can name individuals to be notified when your account has been rendered “inactive” for a set number of months (you can choose between 3 months and 18 months) or you can choose to simply have your data deleted after that period expires without giving anyone access.
But for most accounts, until recently, it was difficult to get access to those accounts without the user name and password. Last summer, Michigan passed the Fiduciary Access to Digital Assets Act which finally embraces the not-so-new reality of how much we use and depend on the internet today. It gives the people you appoint in your power of attorney and your Will or Trust the ability to access your online accounts just as they could access your tangible financial and personal assets.
Who can request access to your digital assets from the digital custodian (i.e., the provider of the account, such as the bank or Facebook)?
- A fiduciary acting under your will or power of attorney
- A personal representative acting for your probate estate
- A trustee acting under your trust
- A court-appointed conservator for your affairs
Note there is one little trap – the online form filled out on the website of the digital custodian takes precedence over whomever you named in your Will. So if you named X to be your Facebook “legacy contact” and forgot about it when you set up your estate plan documents and named Y, your estate plan documents will not override that.
How does the digital custodian give access or disclose the account information? They can do it in any of three ways:
- Grant full access to the account.
- Grant partial access to the account sufficient to perform the required duties (for example, providing access to only view your brokerage account statements, not make any trades).
- Provide a copy of a digital asset that the user could have accessed if they were alive (for example, forwarding the picture files stored in a cloud account).
What are the legal duties of your digital asset fiduciary? The same duties that apply to those who will manage your tangible personal property and financial assets will apply to management of your digital assets, including the duty of care, duty of loyalty, and duty of confidentiality. The new law also says that the person you name cannot impersonate you. For example, they cannot post things on your Facebook account pretending to be you.
Once I’ve named my digital asset fiduciaries, what do I do? Make an inventory of your digital assets with password information (which is something you should do anyway if you haven’t). For each account, indicate whether you want the digital asset fiduciary to save the content (e.g. such as photos), share the content with others or delete the content. For example, I manage all of my husband’s and my online accounts in an old fashioned way: on a password protected Excel spreadsheet – the last column is titled “Wishes” where we specify what we want to happen to the account after we die. As for my personal email account, for instance, I specified I would want it deleted as I am sure there is nothing in it that is relevant after my death and plus it’s private. Or for Facebook, maybe I’d want the content shared with only close family and friends (we have lots of pictures of our family on it) and keep it open for a certain period of time. You should keep a hard copy of the spreadsheet in the same place where you keep your estate plan documents.
There are many online password managers you could use instead of a spreadsheet, but they don’t go far enough to let you indicate what you would want done with the account. I just recently heard of a company called Everplans in which goes beyond digital assets – you can organize all of your asset information for your digital executor and include all of your estate plan documents on it as well. This is to make it easy for your executor to have everything in one place and all your wishes are made clear here. I don’t use this yet so I can’t vouch for it, but I plan to look into it for myself. The cost appears minimal.
Do I need a separate digital asset plan? Not necessarily. I will ensure the proper language is included in your estate plan documents to address your digital assets. But you still need to makes sure your digital accounts are organized and that the passwords are readily available to someone in the event of an emergency.