More and more of our lives are lived online. We bank online, use email for everything, have Facebook, Twitter, Instagram accounts, keep photos on the cloud and have usernames and passwords for virtually every part of our online presence. All of these things could be considered digital asset examples. However, what happens when we become disabled or die and our executor or a fiduciary needs to access these digital assets? Pennsylvania recently joined many states that have passed a law intended to make accessing these accounts easier, reports the Pittsburgh Post-Gazette in the article “New Pa. law recognizes digital assets in estates.”
The official name of the law is the Revised Uniform Fiduciary Access to Digital Assets Act, or RUFADAA. Pennsylvania is one of the last states in the nation—48th—to adopt this type of legislation, with the passage of Act 72 of 2020 (FYI Texas readers, the Texas legislature passed the Texas Revised Uniform Fiduciary Access to Digital Assets Act (TRUFADAA) in 2017). Until now, Pennsylvania didn’t allow concrete authority to access digital information to fiduciaries. The problem: the ability to access the information is still subject to the agreement that the user has with the online provider. That’s the “yes” we give automatically when presented with a software terms of service agreement.
Online service providers give deference to “legacy” contacts that a user can name if authority to a third party to access their accounts is given. However, most people don’t name a successor to have access or the successor is unaware of it, and most apps don’t have a way to do this. I just this week received my first prompt from Facebook to name a legacy successor contact, and if Facebook is just starting that process, you can assume most other apps are far behind.
These laws are necessary because administering an estate with digital assets presents unique challenges. With digital assets, first you have to locate the person’s digital assets (and chances are good you’ll miss a few). There’s no shoebox of old receipts, or letters and bills coming in the mail to identify digital property. The custodians of the online information (Facebook, Instagram, TikTok, Google, etc.) still rely on those contracts between the user and the digital platform.
Under the digital asset law, if the user does not make use of the online tool to name a successor, or if one is not offered, then the user can dictate the terms of access or non-access to the online accounts through estate planning documents, including a will, trust or power of attorney. Most quality estate planning attorneys have included access to such assets in the documents they prepare, and we certainly do.
Here are some tips to help administer your digital assets:
Make a list of all your online accounts, their URL address, usernames and passwords. Share the list only with someone you trust. You will be surprised at just how many you have. I did this a few years ago and was surprised to find it covered four pages. You should also consider recording login information to your devices where you might store information. Often people don’t keep paper records, so you can look for information on laptops, phones and similar devices. Our estate planning binders actually provide a section to do exactly this.
Review the terms of service for each account to see if you have the ability to provide a name for a person who is authorized to access the account on your behalf, such as the Facebook example I provided.
Make sure your estate planning documents are aligned with your service contract preferences. Does your Power of Attorney mention access to your digital accounts? Depending on the potential value, sentimental and otherwise, of your digital assets, you may need to revise your estate plan. This is especially true as our lives are likely to become even more digital in the future.
If you are interested in learning more on this topic, especially the practical components, Mary Galligan did an excellent article on this topic you can find here. https://www.galliganmanning.com/does-your-estate-planning-include-your-online-account-passwords/
Remember to never put specific private information in your estate plan such as account numbers, URLs, usernames or passwords, since your will becomes a public document once it is probated and your other documents may be shared as well. Your estate planning attorney will know how to best accomplish documenting your digital assets, while enabling access to them for your fiduciaries.
Reference: Pittsburgh Post-Gazette (Aug. 24, 2020) “New Pa. law recognizes digital assets in estates.”