A few years ago it was fairly unusual to think of including digital assets in your estate plan. These days it is just too important to ignore. So much of our lives happen online. It is crucial to now consider these things when creating an estate plan.
What is a digital asset?
The legal definition of a digital asset is an electronic record that an individual has the right to use.
Practically speaking, digital assets are some of the most important information in our modern lives. Digital assets include:
- email and social media accounts
- the content of our emails and blog posts
- online reward programs (frequent flyer miles)
- storage and file sharing (Dropbox, Google Drive, iCloud)
- shopping services (Walmart, Target, Etsy)
- financial accounts and cryptocurrencies (PayPal, Venmo)
- video services (Netflix, Hulu, SlingTV)
- music services (Apple Music, Pandora, Spotify)
- books (Kindle, GoodReads, Audible)
- photosharing (Shutterfly, iCloud)
- miscellaneous online assets (gaming services, websites and URLs through GoDaddy or Wix)
The companies which store the user’s information (like Google and Facebook) are called “custodians” in legal terms.
What does Illinois law say about digital assets?
Through a power of attorney, will, or trust, an individual may assign someone to access, manage, and even delete his or her digital assets.
Without a power of attorney, will, or trust, a company’s terms of service dictate what happens to the digital assets.
Some companies (custodians) are finally offering solutions for users:
- Facebook allows users to assign a “Legacy Contact” who may request Facebook delete the account of a user who has passed away.
- Gmail provides a legacy contact feature in their “Inactive Account Manager.” Under this system, the user can draft an email, and the email will be sent to a legacy contact if the user is inactive for a set number of days. So, a user can grant access to the legacy contact by including his or her Gmail password in the email.
- Apple recently created the ability to choose a Legacy Contact, which generates a unique key and allows a person of your choosing to access your Apple digital assets after your passing.
However, other custodians are not as user-friendly. For example, Yahoo!’s terms of service explicitly state that any rights a user has in Yahoo! accounts terminate at death.
Two ways to access digital assets after death
Whoever you rely on to manage your digital assets, your fiduciary (or helper as we like to call them) needs to have a way to access them. There is an easy way and a hard way.
The hard way to access digital assets after death
The hard way for your helper to gain access to your digital assets is by sending each custodian/company the following:
- A written request for disclosure of the digital asset,
- A certified copy of the decedent’s death certificate, and
- A certified copy of the power of attorney, will, or declaration of trust. Even after your custodian takes this step, the custodian is free to either provide the information or delete the account within 60 days.
The easy way to access digital assets after death
The easy (and more reliable) way for your helper to gain access to your digital assets is to keep a list of them along with the username and password.
This is easier said than done, though. When a friend’s husband recently passed away, we discovered that while he had a rather comprehensive list of usernames and passwords, the list was not up to date.
Many companies force users to update their passwords on a regular basis, so written lists quickly become outdated. When users struggle to remember their password, a common solution is to reset the password by email. And when that happens, it’s easy to forget to update your written list.
Using an online password manager makes things even easier
To avoid passing away with an outdated digital asset sheet, many planners are using online password managers, such as LastPass.
LastPass has both an “Emergency Contact” and “Families” feature, so users can designate multiple fiduciaries to have access to their login information. LastPass also allows users to leave behind custom notes for their fiduciary (helper), which may contain the PIN to access the user’s phone and list a number of subscription services that should be canceled upon the user’s death.
LastPass is a really good option for getting started protecting your digital assets and making sure your loved ones have access to them after you’re gone.
If you have not taken the steps to protect your assets — digital or physical — through proper estate planning, we encourage you to call us at 217-703-8330 to RSVP for an upcoming workshop or to schedule an Initial Meeting.