FAQ #11

11. I use on-line banking, Facebook and other social media, and e-mail, blogs and other Internet accounts. What happens to them if I become incapacitated or die?

The term “digital assets” refers to materials stored on computers, on the Internet ( in the Cloud), and storage devices including smart phones and tablets. It encompasses digital currency, e.g. Bitcoin, as well as photos and music, and business assets such as domain names, customer lists, financial files and trade secrets, if they are stored electronically.

Issues of access and privacy relating to digital assets are currently in a state of flux, and the technology is way ahead of the law. In estate planning, we want our appointees to be able to conduct our banking and pay bills, control social media for us, and access all of our stored information. Thus, authorization should be included in a Client’s Will, trusts, powers of attorney and medical directives, both as to records and contents.

The next step is to prepare an “inventory” of digital accounts and account information (including user ID’s and passwords), kept in a safe but accessible place for the Client’s appointees. Then, contact the service providers for all such accounts and request the Terms of Service (“TOS”), to determine what access, activity and privacy waivers they will allow and what they need to give third-party permission. If the appointees know the passwords and other entry information, that access can be used for a short period of time, although its legality has not been court-tested. If the provider refuses access, the appointee may have to request a court order from the probate court.

Until we have comprehensive statutes and rulings in this area, I also am urging my Clients to receive or print out hard copies of monthly/quarterly financial statements from their electronic-account issuers, tax filings, significant business and personal materials from their computers and tablets, and to download everything important from their e-mail accounts to an encrypted separate hard-drive, in case the main machine fails. Pictures and other personal materials should be archived, and all of the saving of materials done by your helpers before notifying the service providers of your death or disability, when they may cut off access.