Technology is changing all aspects of our lives. We are leaving behind a paperless trail of “electronic records.”
Do you get paper bank statements, or are they sent electronically by email? Do you pay any bills online? Do you shoot photos on film and save physical albums, or are most of your photos taken with your camera phone and stored on your phone and computer or in a cloud storage program like Dropbox or iCloud? Do you send paper letters and notes to friends, or do you use email and interact on social media sites like Facebook, Instagram or Twitter? Have you ever wondered what happens to all of your digital life?
In today’s increasingly technological world, you will want to determine what happens to your virtual self after you are gone. This is important for a few reasons. First, a lot of people pay their bills online these days. Loved ones need to know what bills are unpaid. Second, it is possible that the deceased has valuable assets online, such as domain names. These can become part of the estate. Third, preservation of a person’s online memory may be sentimental to the family.
This digital trail that you are leaving behind has created a new issue of how to pass on property that you own when the only records of it are digital. The person who holds digital assets is called a “CUSTODIAN” and the contract that controls them is called the “TERMS-OF-SERVICE AGREEMENT”. This is that long contract that you agree to when you accept the Terms of Service. Recently, Apple was ordered to unlock an iPhone that was used in a terrorist attack, Apple refused as they saw it as an overreaching request and endangering the privacy and security of its users. The “CUSTODIAN” has a duty to keep user information private, but how do we plan for these digital assets? Are their situations when this digital information should be shared?
The Revised Uniform Fiduciary Access to Digital Assets Act became effective on August 8, 2016 (FADAA). The Act seeks to fill the gap between the fiduciaries who need to collect assets and the “CUSTODIAN” needing to maintain privacy, and allows for the transfer of digital assets in the same manner that other assets and property are dealt with. If you get any bank statements online or pay any bills online, this affects you.
Determining Your Virtual Self
It is worthwhile to determine what online accounts you have. Some of the more common accounts already have their own instructions on what happens after a person is deceased. Facebook, for instance, already has a detailed procedure regarding what happens to a deceased person’s account. While not as detailed, other sites and platforms that have language regarding a person’s death include Google, Dropbox, and Twitter.
With any of these websites, however, it is important to keep in mind that terms and conditions are ever-changing. As such, it is important to talk to your attorney to determine what additional steps you can take.
What are digital assets?
In today’s increasingly technological world, you will want to determine what happens to your virtual self after you are gone.
Staying on Top of the Law
Other methods to ensure peaceful access and management of your digital self-are worthwhile. For instance, including language about digital assets in a power of attorney and providing decision-making authority to an agent can go a long way. Making mention of digital assets in your will and even trusts may also work in certain circumstances. With specificity, the existing estate planning instruments can work in conjunction to potentially prevent legal hurdles regarding a person’s digital assets and existence after passing.
This area of the law is still new though. Different states have different laws regarding digital assets—if they have any laws at all! However, the attorneys at EDS are monitoring these changes so that you and your loved ones can rest easy.