Virtual Estate Reality: What Happens To Your Digital Assets When You Die? – June 2017

Issue 43, January 2017

In addition to taking inventory of a decedent’s valuable assets like bank accounts, real estate and vehicles, a personal representative (“PR”) must go through a decedent’s personal effects like photos, letters and journals. In years past that would mean going through dusty cardboard boxes stored in closets and attics. Today many of these types of personal effects are stored digitally in the cloud. With the advent of social media, many, if not all, photos and communications are stored and accessed through sites like Facebook, Twitter, Pinterest and Instagram. Although not as dusty as digging through old boxes, a PR still must determine what to do with the decedent’s digital accounts.

Utah recently enacted the Uniform Fiduciary Access to Digital Assets Act (the “Act”) to fill in some gaps in the law and make managing the decedent’s digital accounts easier. Through the Act, the PR may gain access to digital account information without having the password.

Should You Pass on Your Passwords When You Pass Away?

The easiest way to allow your PR unlimited access to your digital accounts is to simply give him your passwords and security question answers. Although this is the simplest way, it is also risky. First, you would either need to keep a current list of all your passwords, or never change them at all. Next, there may be private items in your digital collection you never intended to disclose. By passing on your passwords, your PR has full access to everything in your digital accounts. In fact, he or she may continue posting and communicating to others as if you had not passed away. This could lead to confusing and fraudulent conduct. Rather than share passwords, websites encourage people to decide what to do with their accounts before they die through online tools and settings.

Most social media websites have terms of use that specify what happens when the account user dies. For example, Facebook allows multiple options should an account holder pass away. Within the account’s settings, a person may choose to memorialize their Facebook account, appoint a “legacy contact” or even delete the account upon death. Each option allows differing levels of access by your surviving family members. If the decedent has given no instructions to the website, then the Act kicks in upon his death.

Activating Access Under the Act

The Act allows a PR access to information in the decedent’s account, but it is limited. Unless the decedent consented to the appointment of the PR, as evidenced by a will, the PR may still not access the content of the decedent’s communications. But, unless expressly prohibited by the decedent, the PR may obtain a catalog of the communications (information like the time, date and address) without the decedent’s consent. The PR obtains such information by requesting it in writing. The request should be accompanied by certified copies of the death certificate and letters of the PR’s appointment as well as a copy of the will or other document showing the decedent’s consent. The website may request additional information prior to disclosure.

Real Help for the Virtual Estate

TJB is well-versed in all aspects of wills, estates and trusts, including cloud-based issues and e-concerns. Please give us a call. We can help.