Digital Records and Your Privacy

The rights to access digital assets are scattered through a web of user agreements and federal and state laws. The law protects both a fiduciary’s right to access and the decedent’s privacy.

Digital assets include:

• Electronic communications — emails, social networking sites and blogs.
• Online reward programs.
• Financial accounts.
• Documents stored in the cloud.
• Income-generating websites or blogs.
• Digital collections — music files, photographs and videos.
• Business accounts — customer databases, including personal and sometimes confidential information.
• Digital copyrights or trademarks.
• Cryptocurrencies.

When you create a digital asset, you are usually taken to a lengthy legal document called the terms of service and asked to acknowledge that you read and understood it. Most people scroll to the bottom of these agreements with hardly a glance at the text. What we do not realize is that we have agreed to prohibit third-party access — including access by fiduciaries — to digital assets after we die or are incapacitated. So, when your heirs try to account for all your belongings, they can run into problems.

It is not the fault of tech companies. Their terms of service align with federal laws. These laws were drafted to protect privacy and combat hacking. Even if your fiduciary has your username and password, he or she may not have the legal authority to get into your account.

The model Fiduciary Access to Digital Assets Act of 2015, which extends fiduciary powers to digital assets, has been enacted or introduced in every state.

Here are some steps you can take to dispose of your digital assets.

1. Create an inventory of your digital assets that includes what accounts you currently hold and how you want your fiduciary to manage them. Be as specific as possible when outlining how you want your digital assets to be handled:
   1. Provide legal protection for your loved ones, since state and federal laws make accessing computer systems or private data without permission a crime.
   2. For each digital asset, you will need to decide what you want your estate’s executor or loved ones to do with them after you pass away.
   3. This can include smaller decisions, like what will happen to the credit card rewards you’ve accumulated and larger decisions like whether an online business you own will continue to operate.
2. Determine whether your state has a law pertaining to your digital assets. State law may specify what can or can’t be included in your digital estate plan, the format your digital estate plan must take and how a digital estate plan must be witnessed or recorded.
3. Ascertain what planning options are available. This includes instructions within a will, trust or power of attorney that allow a fiduciary to either access or destroy certain digital assets. Name a digital executor and spell out what he or she may or may not manage as part of your online estate plan.

This is just an introduction to a complex topic. Consult your estate planning attorney for guidance on your particular situation.