Online accounts are convenient. Want to look at your email at the summit of Whiteface Mountain? If you have a few bars, you’re in business. Yet, your digital convenience is your fiduciary’s digital demise. Executing your final wishes for online accounts, digital assets and electronic devices can be challenging and costly.
Of course, this assumes a fiduciary can even access your online accounts and electronic devices. The Uniform Law Commission is attempting to address this issue. As I covered last month (i) in my interview with attorney Suzanne Brown Walsh (ii), the Uniform Fiduciary Access to Digital Assets Act (UFADAA) (iii) grants fiduciaries access to online accounts, digital assets and devices. UFADAA is the law in Delaware and is being considered in 28 other states, including New York.
While UFADAA is being considered, there are many things an estate planning attorney can do to help an executor access online accounts and electronic devices and evaluate digital assets. Walsh shared the following planning tips. I have also compiled a simple list of questions regarding assets, accounts and devices you may wish to use during client interviews. If you have suggestions for additional tips or questions, please email me at firstname.lastname@example.org.
- Explain to clients that the executor is beholden to the online service provider’s policies and practices. Often, the default position of a service provider is that the account should be terminated at death and records deleted. Thus, the client may wish to plan for the possibility that a fiduciary will have no access.
- If an account (or its contents) can be accessed, determining who, if anyone, should have access may be extremely uncomfortable for a client. Account contents may be highly personal or embarrassing. Thus, a traditional fiduciary like a spouse or child may not be a good choice. A friend or institution may be preferable.
- While discussing who can access an account, be sensitive to potential generational differences. Very generally, older clients may be comfortable granting access to online accounts, while younger clients may prefer deletion.
- Determine what should happen to an account and/or a digital asset: deletion, continued use by an appropriate person, temporary fiduciary use to assist with duties, or other resolution.
- You may wish to suggest that a client designate separate email (or social media) accounts for work, personal business and purely personal matters. This may simplify the decision of who may access the account and/or contents.
- There are services that address access after death, such as by notifying others of a customer’s passing and sharing passwords. If a client suggests one of these services, explore whether the client will keep such a service up-to-date.
- Suggest a “Digital Day” to identify accounts or devices used. Ask the client to track each time he or she uses a password or an account to do something. A client might need a digital week for a more complete list, but that does not roll of the tongue. Don’t ask a client to record passwords or request copies of the same.
- Wills and trusts are long-term plans. Online services and their features are often short term or evolve over the long term. Assume a provider may close or that services offered may change. Also, don’t draft provisions dependent upon how a service operates or assume its particular language is appropriate for your planning documents.
- Consider how you will document a client’s choices and how the fiduciary, as a fiduciary, will demonstrate access is proper.
- Explain to clients the cost and challenges of accessing password-protected devices. For example, if computer forensics are required to access a device, a reputable vendor will charge a fee and want clear proof that the fiduciary has the requisite authority over the device.
Basic online and digital inventory questions for clients
- What type of assets do you put online and on your electronic devices? Potential categories of assets include:
- Sentimental: pictures, emails, videos
- Personal business: financial records, receipts, a novel or valuable images
- Work or company-related information: software used to run a business, employee records, customer lists, business practices
- Electronic-only assets: Bitcoin, Amazon or Apple Pay accounts
- What kind of online accounts do you use?
- Financial and business services
- Health records or applications
- Social media
- Social media or email management tools (ex: Hootsuite)
- Backup services
- File sharing (ex: Box, Dropbox)
- Association, group or club memberships
- Do you receive paper copies of information related to any of the above?
- What devices do you use to access online accounts or save digital assets?
- Storage device(s) (ex: external drives, USB drives, DVDs)
- Old or retired device(s)
- Do any of the above accounts or devices:
- Require passwords? (Remember, you do not want a list of the passwords.)
- Use “Two Factor Authentication” (i.e. needing a code, in addition to a password, to sign in to an account)?
- Additional questions regarding passwords.
- Do you use password management software or a service to manage or keep passwords?
- Do you use social media accounts, such as Facebook, to log in to other accounts?
- Who should have a list of your passwords and codes, if anyone?
- How will they access a list you make?
Thanks to attorney Matthew Brown
In lieu of the usual takeaways (aren’t the 15 points above enough?), I want to express my gratitude to Matthew Brown, deputy county attorney for Monroe County. This column would not exist without his assistance. He is overly generous with his time, has deep legal knowledge and raises insightful questions that make this column better. Thank you, Matt!
Correction: Last month I indicated that UFADAA presumes account access for fiduciaries, unless the account holder chose to deny access. Under UFADAA, only the executor or personal representative of a decedent’s estate has default access. The “default” rules are different for conservators, trustees and agents under a power of attorney. A conservator’s access must be authorized by the supervising court. Trustees have access by default only to the digital assets registered in the name of the trust. Agents with general authority have default access to most digital assets, but generally not to the contents of electronic communications protected by federal privacy law.
i See Oct. 21, 2014 Daily Record. Digital copy here: https://nydailyrecord.com/blog/2014/10/21/social-media-law-uniform-act-provides-fiduciaries-access-to-digital-records
Scott Malouf is an attorney who helps other attorneys use social media, text and Web-based evidence. You can learn more about him at his website (www.scottmalouf.com) and follow him on Twitter at @ScottMalouf.