2017 October 20 by Erin Nobles
When you think about your “assets,” you probably think about your 401k, your house, and your personal property. But take a moment to think about your online content: email accounts, banking and credit accounts, social media, online subscriptions, and so much more.
These are all part of your digital estate and should be addressed in your estate plan. On the most basic level, your personal representative will need access to your accounts to notify online friends of your passing, pay final expenses, and cancel subscription services. Additionally, there may be financial or sentimental value in your social media data, bitcoin wallet, and personal or business blog.
But whereas Massachusetts law is clear that a duly appointed personal representative may take possession of your physical property at your death in order to make sure your last wishes are carried out, the law is less clear about what happens to your digital assets. A recent case out of Massachusetts’ highest court illustrates the value of planning for your digital estate.
In 2006, Massachusetts resident John G. Ajemian passed away following a bicycle accident. Like many 43 year olds, he did not have a will. His brother Robert sent a request to Yahoo! for access to John’s Yahoo! email account in the hopes that John’s email history might help him wrap up his brother’s affairs.
Yahoo! denied Robert’s request, claiming that releasing the account to him would be a violation of federal digital privacy laws which prohibit disclosure of electronic communication to third parties. The Court found that an exception to the law applied, allowing for disclosure to a personal representative who could “lawfully consent” to the disclosure on the decedent’s behalf. So far, so good.
However, despite holding that Yahoo! was not barred from releasing the account, the Court noted that Massachusetts law does not compel Yahoo! to release the account if they don’t want to. Furthermore, the Court did not rule on Yahoo!’s other argument that they could always just delete the account based on the user agreement John agreed to when he opened the account rather than turn it over to a third party. Not good.
So how do you make it more likely your personal representative will be able to access the information he needs to settle your digital estate? A few ideas:
1. Keep a log of current login and password information (somewhere safe and not “hackable,” obviously) and don’t forget to update it regularly. This can be as simple as keeping a running list of passwords with your important documents or ICE Binder. Another option is to CONSISTENTLY use a password manager like True Key or LastPass. Many of these services are free for a limited number of passwords, or have a nominal fee for an unlimited number. Just make sure your future personal representative knows where, how, and under what circumstances she can access the master password.
2. Make sure your personal representative has specific authority to access your online accounts. This should be referenced in a stand-alone release of electronic information (RESI), as well as in your power of attorney, and your will. Currently, about half of the States have adopted some version of the Uniform Fiduciary Access to Digital Assets Act (UFADAA), which specifically empowers a personal representative to obtain disclosure of your online assets, exactly in the same way he or she would be able to take over paying your mortgage of selling your art collection. Until Massachusetts joins in the adoption of the UFADAA, ensuring that your estate plan grants these powers to your personal representative is a good idea.
3. Think twice before accepting that user agreement for any new app or online service provider. The user agreement with the tiny boilerplate text that you just scroll through to click “accept” may just obviate your personal representative’s rights to the account in the case of your death.
Digital assets will only continue to become a more significant part of our estates as we migrate more and more of our life online. Make sure digital estate management is part of the conversation you have with your estate planning lawyer and that he or she can speak comfortably about your options when it comes to settling your digital affairs.
Erin Nobles is a partner at Nobles & Sigman, Attorneys at Law, a virtual and concierge law practice based in Melrose, Massachusetts. She focuses her practice on estate planning, with an emphasis on the unique issues facing entrepreneurial women and younger families. Erin is on Twitter @OnDeathandTaxes.
2017 October 4 by Erin Nobles
The Equifax credit breach that was announced last month is big and scary, potentially exposing the personal data of 143 million consumers, including names, addresses, Social Security numbers, and birth dates. That’s right…basically everything the bad guys need to open credit accounts pretending to be you.
The good news is that you can take steps right now to protect your good credit. Putting a security freeze on your credit accounts will prevent anyone from opening accounts in your name without your authorization.