PLANNING FOR DIGITAL ASSETS
When asked what their assets are, most individuals list their home, car, bank accounts, jewelry, art collections, etc. But many people do not realize that they also may own digital assets. Digital assets consist of an individual’s electronically stored information and accounts, such as email accounts, social media accounts, on-line bank accounts, photos stored on a phone or computer, etc. In this day and age, where almost all of an individual’s business and personal transactions are conducted electronically, the list of an individual’s digital assets is ever changing and almost endless. But what happens to these assets when an individual passes away? Who can access and retrieve the emails, photos, or bank accounts of a deceased individual? The answer to this may depend on whether the individual has provided for another individual to gain access to these accounts via an estate planning document such as a Will or Power of Attorney. It may also depend on a website’s Terms of Service Agreement (“TOSA”), which most people never read yet agree to. If access to digital assets is not properly planned for, executors or relatives may have a very difficult time obtaining the right to access the accounts and may even need court authority to gain access.
What happens to an individual’s electronic accounts at his/her death is often governed by the website’s (“TOSA”). For instance, as of 2018, Yahoo will not provide anyone other than the original owner access to the account under their TOSA. It will close the account at the request of the executor and with a copy of the death certificate, but the contents of the account will be deleted. Facebook, however, currently allows its users to designate a “legacy contact.” A legacy contact is an individual whom the user designates to manage his/her account after they pass away. The legacy contact will be able to post on the deceased individual’s Timeline, change the profile picture, and respond to new friend requests, however, the legacy contact will not be able to view the individual’s messages. Facebook users may also choose to have their account permanently deleted at their death. Therefore, it is important to read and become familiar with the TOSA for any on-line accounts that you own, and if possible, designate a friend or family member to access or manage the account, or to have the account deleted at your death.
Even if an individual grants another individual access to his/her on-line accounts, the provider or custodian of the website may refuse to allow that individual access, arguing that it would violate Federal Privacy Laws and would be in violation of the TOSA, and absent a court order, will not release the information or grant access to the account. Many states have enacted laws regarding digital assets. The Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) is a law which grants fiduciaries, such as executors, personal representatives, Agents under a Power of Attorney, etc., the right to manage a person’s digital property, however, they may not access electronic communications such as emails, texts or social media accounts unless they are given express approval via a Will, Power of Attorney or other similar type document. Pennsylvania has introduced this Bill, but has not yet enacted it.
Given the complexities that may arise in attempting to access and manage a loved one’s digital assets at their death, it is prudent to account for these assets in a Will, Power of Attorney, or Trust, and to appoint an individual whom you wish to be able to access these accounts. It is also a good idea to make a list of all electronic accounts with specific details about each account, keep this information in a safe place, and to make sure that your executor or Agent under Power of Attorney knows where to find this information. If an executor or Agent under a Power of Attorney is not aware of an on-line account, it is possible that an account containing assets may never be found or even known to be in existence.
If you would like more information about estate planning for digital assets, please call McAndrews Law Offices at 610-648-9300.