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Estate Planning in the Digital Age / Digital Identities Live on After Death

November 16, 2017

Have you ever wondered what will happen to your Twitter, Facebook, and Bitcoin accounts after your death? In an era dominated by technology advancements, proper estate planning for the modern day incorporates final digital asset wishes into Last Will and Testaments. Anticipating and arranging digital media assets prior to death will do more than give you peace of mind; it will simplify the process of managing your post-death estate for your family, and trustee.    

A digital asset is an electronically stored piece of content, or an online account, which an individual owns. McAfee, a global computer security software company, has estimated that the average person’s digital asset ownership is about $35,000. These assets, which have emotional and financial value, include social media accounts, bank brokerage, domain names, digital music, and more. During planning, individuals should catalog their assets, and include even minute details like email passwords and online cell phone billing. Next, appoint a trustee and supply the fiduciary with access to your online accounts. Lastly, provide explicit instructions to the will executor about what should be done with your digital assets.

Important to modern estate planning is knowledge of each state’s digital asset laws. New York State restores control of digital asset allocation back to the individual and removes power from electronic service providers via the Article 13-A bill to the New York Estates, Powers, and Trust Law. This legislation is New York’s version of the Uniform Fiduciary Access to Digital Assets Act, which has only recently taken effect in other states. Initiated in 2016, Article 13-A encompasses personal digital use, and ensures, that with suitable planning, an individual’s post-death wishes are not overridden by dated online tools or service providers’ terms of service agreements.

Without digital estate planning, trustees may encounter laws and terms of service agreements, which usually require family members to attain a court order to obtain digital account passwords. Additionally, the Electronic Computer Privacy Act requires service providers to acquire a user’s assent before disclosing account information to the owner’s family, or estate trustee. New York’s privacy laws penalize unauthorized access to digital accounts and computers and also ban service providers from divulging private information. Having the foresight to make legal plans with an attorney can help trustees avoid the confusion associated with estates, and ensure basic protections for an individual’s assets.

            According to Queenie Wong’s article “What happens to Facebook account when you die?”, Facebook, Inc. hesitates to release account information because it may adversely affect the privacy of survivors.  Facebook’s global policy provides a user setting called “legacy contact,” which names a person who will manage the account post-death. Likewise, users have the option to tell Facebook to permanently delete the account after their death. However, most users do not utilize these settings, and post-death, Facebook defaults to its memorialized profiles by adding the word “remembering” to the owner’s online page. Facebook, Inc. struggles to balance the nature of the assets, the account owner’s final requests, and the confidentiality of surviving third parties when individuals do not leave a digital will.

            In a recent estate proceeding, a petition was filed requesting authority to access a deceased spouse’s email, contacts, and online calendar information. In re Estate of Serrano, 56 Misc.3d 497 (N.Y. 2017). The petitioner had submitted a request to Google Inc. to access his spouse’s account but was told that he must obtain a court order to gain access to the online information. Here, the Court found that access to this information was essential to the management of the estate. Pursuant to Article 13-A of the Estates, Powers, and Trusts Law, Google Inc. disclosed all electronic communications to the deceased user’s personal representative upon receiving the court order, a certified copy of the letter as fiduciary, and a death certificate copy.

This proceeding underscores the necessity of having a digital asset will. Modern asset preparation in advance of death, or sudden incapacitation, provides family members with appropriate grieving time, without the added stress of unplanned estate management. Attorneys are equipped to respond to this shift in estate planning by utilizing resources to protect clients’ data assets.