Starting today you may wish to start planning for your digital assets. We live in a world where a decedent can more often that not have a tremendous amount of digital property: an email account on Gmail, a Youtube channel with a multitude of videos, a successful Yelp page for their business, a personal and business Twitter account, a personal and business Facebook account, an Instagram account, a PinInterest account and whatever else comes next in the expanding internet world we live in. The numbers are truly mesmerizing. In their fourth quarter results of 2014, Facebook reported 1.393 billion monthly active users.(1) Thirty-one percent of all United States senior citizens use Facebook.(2) Twenty-six percent of internet users have a Instagram account.(3) Twenty- three percent have a Twitter page.(4)
At first, it was hard to wrap my own head around thinking about these digital assets as true assets. Where is the hard value? Besides a rare Youtube channel that may be bringing in revenue, the value may not always be monetary when it comes to a digital asset. For example , an executor may want to memorialize a Facebook page to let the decedent’s friends know she has passed. There may be that tweet on Twitter that agonizes the decedent’s daughter every time she looks at it and she begs you to take it down. Maybe there is that lost email the decedent’s son can’t find, that he knows would bring him peace just to read it. Yet, the hard value does exist in the digital age, i.e. a business owner may have kept all their financial records in the cloud. The situations are countless.
So what happens to all this growing information when someone dies?
The Law Today
Currently if a New York decedent fails to plan for her digital assets, they are stuck in the vortex of attempting to deal with each provider that holds their digital information. Remember that click-through terms of service agreement you agreed to when setting up your Gmail or Facebook account? That is the one that governs.
Executors aren’t automatically granted power to go in and disable, reconfigure, or memorialize accounts in New York. Without a login and password for the account, attempts may be futile. Even with a login and password, you are probably going to run afoul of the terms of service agreement that the decedent electronically signed.
The Smart Solution
Across the United States the question as to what power an estate fiduciary has when it comes to digital property is slowly being concretely answered. At the time of this article, 21 states have enacted the Uniform Fiduciary Access to Digital Assets Act (UFADAA). The purpose of the UFADAA is to vest fiduciaries with the authority to access, control, or copy digital assets, while respecting the privacy and intent of the account holder.(5) Currently, New York does not have that law, and an executor, administrator, or trustee is still held at the whim of the account holder, i.e. Gmail.
New York does have proposed legislation on the table which is currently under review. It comes as an update to New York Estates Powers and Trusts Law (EPTL):
S 11-1.12 ACCESS TO DECEDENT’S ELECTRONIC MAIL, SOCIAL NETWORKING AND/OR
MICROBLOGGING ACCOUNTS
(A) THE EXECUTOR OR ADMINISTRATOR OR AN ESTATE OF A DECEASED PERSON
WHO WAS DOMICILED IN THIS STATE AT THE TIME OF HIS OR HER DEATH SHALL
HAVE THE POWER TO TAKE CONTROL OF, CONDUCT, CONTINUE OR TERMINATE ANY
ACCOUNTS OF THE DECEDENT ON ANY SOCIAL NETWORKING WEBSITE, ANY MICROB-
LOGGING OR SHORT MESSAGE SERVICE WEBSITE OR ANY EMAIL SERVICE WEBSITE.
(B) ANY SERVICE PROVIDER OF A SOCIAL NETWORKING WEBSITE, A MICROBLOG-
GING OR SHORT MESSAGE SERVICE WEBSITE OR AN EMAIL SERVICE WEBSITE SHALL
PROVIDE TO THE EXECUTOR OR ADMINISTRATOR OF SUCH ESTATE ACCESS TO ANY
ACCOUNT HELD BY THE DECEDENT UPON RECEIPT BY THE SERVICE PROVIDER OF:
(1) A WRITTEN REQUEST FOR SUCH ACCESS MADE BY THE EXECUTOR OR ADMINIS-
TRATOR, ACCOMPANIED BY A COPY OF THE DEATH CERTIFICATE AND A CERTIFIED
COPY OF THE CERTIFICATE OF APPOINTMENT AS EXECUTOR OR ADMINISTRATOR; AND
(2) AN ORDER OF THE COURT OF PROBATE WITH JURISDICTION OVER THE ESTATE
OF THE DECEDENT DESIGNATING THE EXECUTOR OR ADMINISTRATOR AS AN AGENT
FOR THE DECEASED SUBSCRIBER AS DEFINED IN THE ELECTRONIC COMMUNICATIONS
PRIVACY ACT, 18 U.S.C. 2701, ON BEHALF OF HIS OR HER ESTATE, AND ORDER-
ING THAT THE ESTATE SHALL FIRST INDEMNIFY THE SERVICE PROVIDER FROM ALL
LIABILITY IN COMPLYING WITH SUCH ORDER.
(C) NOTHING IN THIS CHAPTER SHALL BE CONSTRUED TO REQUIRE SUCH SERVICE
PROVIDER TO DISCLOSE ANY INFORMATION IN VIOLATION OF ANY APPLICABLE
FEDERAL LAW.
We will see where it goes, but this would be a tremendous step in the right direction for any future appointed executor or administrator of an estate.
What can you do in the meantime?
Currently I advise my clients to take these simple steps in order to help ease the transition of the data when the time comes:
1) Make a list of all accounts and passwords. Keep it in a secure place.
2) Backup your important digital data on a schedule to a separate, secure hard drive or other secure device.
3) And lastly it is imperative that a person explicitly authorize the companies that hold their electronic data to release that data to their fiduciaries during incapacity and after their death. This would be done through their estate planning documents, including, but not limited to any wills, trusts, and power of attorney.
1. http://expandedramblings.com/index.php/by-the-numbers-17-amazing-facebook-stats/
2. http://www.pewinternet.org/2015/01/09/social-media-update-2014/
3. http://www.pewinternet.org/2015/01/09/demographics-of-key-social-networking-platforms-2/
4. http://www.pewinternet.org/2015/01/09/demographics-of-key-social-networking-platforms-2/
5. http://www.digitalpassing.com/2014/07/16/uniform-fiduciary-access-digital-assets-act-ufadaa/
