Have you ever wondered what will happen to your Facebook, Twitter, or online bank accounts after your death? In an era dominated by technological advancement, proper estate planning must incorporate digital assets into the plan.
A “digital asset” is anything that exists in a binary (i.e. electronic) format and comes with the right to use. A digital asset may be an electronically stored piece of content or an online account profile, such as a social media account. Digital assets include: digital documents, emails, social media accounts, bank brokerage, domain names, digital music, motion picture, and other relevant data that are in circulation or can be stored on digital appliances like a personal computer, laptop, portable media players, etc., regardless of who owns the actual device where it is stored. These assets have both emotional and monetary value. Consequently, estate plans should include details for the assets, as well as access to user names and passwords.
Estates Powers and Trust Law
On September 29, 2016, a bill was signed into law by Governor Cuomo adding Article 13-A to New York’s Estates Powers and Trust Law. This legislation is the New York version of the “Uniform Fiduciary Access to Digital Assets Act” which many other states have also enacted into law.
The statute restores control of the disposition of digital assets back to the individual and removes such power from the service provider. Without estate planning for digital assets, Executors and Trustees may encounter laws and Terms of Service (ToS) agreements which require family members to attain a court order to obtain digital account passwords. Additionally, the Stored Communications Act (currently codified as 18 U.S.C.§§ 2701 et seq.) requires service providers to obtain “lawful consent” before disclosing account information to the owner’s family, Executor, or Trustee.
Some social media applications allow for a “legacy contact,” allowing you to designate a person to manage the account post-death. However, not all applications allow for legacy contacts. Having the foresight to plan with an attorney can help families avoid the confusion and delay while ensuring the protection of an individual’s assets.
Your Last Will and Testament document should authorize your Executor to access any passwords, usernames, digital and/or electronic account information necessary to the administration of estate assets.
Further, a Durable General Power of Attorney for use during lifetime (in the event you become incapacitated) should also contain the power for your agent to access, use, and control digital devices. These include personal computers, storage devices, smartphones, and any other similar devices. It also grants the power to access, modify, delete and otherwise control your digital assets, including electronic communications and their contents, photos, videos, social network accounts, online shopping accounts, online banking and investing, etc. Your agent should also have the power to obtain, access, modify, delete and control any passwords, usernames or other online credentials associated with any and all digital assets and/or digital devices.
If you have any questions about the above material or wish to speak to an attorney, please contact Pfalzgraf, Beinhauer & Menzies, LLP at (716) 204-1055.
Pfalzgraf, Beinhauer & Menzies, LLP is located at 455 Cayuga Road, Suite 600, Buffalo, NY 14225.