Digital assets and accounts
Estate planning + fiduciary access
Jennifer A. Maas
Think about the number of online accounts you have. There’s social media, finances, e-mail, cloud storage, membership or professional affiliations, music and many others. Online accounts require less physical storage space, allow you to access the account anywhere there’s an internet connection and sometimes even provide a benefit for “going paperless.” However, digital assets may cause issues for your executor, trustee, conservator or power of attorney (your “fiduciary”) in the event you become disabled or pass away. This is why it’s important to make sure you address digital assets in your estate plan.
Houston, we have a problem
There are a few problems your fiduciary could run into in the event he or she needs to handle your digital assets.
- First, your fiduciary may not be able to determine what assets you have. Previously, a fiduciary could simply monitor a person’s mail, for documents such as bank statements, to figure out what assets that person owned. But with more people handling transactions entirely online, your fiduciary may not receive statements in the mail and may miss the full picture of your assets.
- Second, even if your fiduciary can determine what assets you have, he or she may have trouble accessing them or information about them – for example, your fiduciary may not know your passwords.
- Third, the Computer Fraud and Abuse Act and similar state statutes impose civil or criminal liability on a person who accesses a computer without authorization or who exceeds his or her authorized access. So, even if your fiduciary knows your passwords, he or she might be violating the law by using those passwords to access your accounts if the fiduciary doesn’t have the proper authorization.
- Finally, financial institutions and other content providers may be hesitant to divulge digital information without authorization for fear of violating privacy laws, such as the Stored Communications Act or state law equivalents, or for fear of litigation.
These four things can make it very difficult for your fiduciary to gather the information to prepare necessary tax returns and/or handle financial transactions on your behalf.
There is an Arizona law – Revised Uniform Fiduciary Access to Digital Assets Act (S.B. 1413) – that can make it easier for a fiduciary to access the digital accounts of a disabled or deceased person. You can specify in your will, trust, power of attorney or other record that your fiduciary is allowed to access your digital assets. If you do not provide direction in an estate planning document or complete a site-specific tool (for example, Google inactive account manager), then your fiduciary may still be entitled access to some, but not all, of the information in your digital accounts under this law. For example, under the Revised Uniform Fiduciary Access to Digital Assets Act, a fiduciary can access a catalogue of e-mail (e.g. listing of e-mail recipients) but not the full text of the e-mail.
Accessing your digital assets
There are several ways you can make it easier for your fiduciary to manage your financial affairs and digital assets if something happens to you.
Prepare an inventory of your digital assets. Make a written list of your electronic devices and online accounts that your fiduciary may need to access. This list should be easily accessible to the fiduciary, meaning you should not keep it in a safe deposit box or in electronic form on a device that your fiduciary cannot access. The list should include your:
- Account numbers
- Any other information that may assist your fiduciary in handling your affairs
The proper storage location for your digital asset list will accomplish three goals.
- First, it should be easily accessible by your fiduciary, but secure so that others cannot access it.
- Second, it should be able to be located shortly after your death without too much searching.
- Third, it should be in a location and format that is easy for you to update so that the fiduciary doesn’t find an outdated list.
If your fiduciary is your elderly parent, your list will probably be stored much differently than if your fiduciary is your tech savvy spouse. You can keep your list on paper or electronically on a password manager (e.g. Dashlane or LastPass). The most important thing is to find something that works for you and your fiduciary.
Create a back-up of your digital assets offline. Keep a local copy of information such as photos and important financial documents on your computer, external hard drive or USB flash drive. This may make it easier for your fiduciary to handle your affairs because all the information he or she needs will be in a central location.
Complete site-specific tools and institution-specific powers of attorney. If a website offers a site-specific form that you can complete to allow your fiduciary access to your account, take the time to fill out the form. Additionally, some financial institutions have an institution-specific power of attorney. Filling out these forms makes it less likely that your fiduciary will encounter problems with the institution not accepting other, more general forms.
Contact your attorney. Be sure to update your estate planning documents to include a provision allowing your fiduciary to have access to your digital assets.
Matters related to estate planning are understandably difficult. Having a plan in place and the proper documentation for your digital assets is just one more way you can make things easier for your family.