Illinois Estate Planning and Elder Law Blog
People often have more digital assets than they realize. What happens to these assets when a person dies?
Until recently, every individual site has had its own terms of service that determined who has ownership and access after a death and whether the assets are deleted, frozen or can be transferred. This has meant a hodgepodge of rules for survivors to need to sort through, and family members are often shocked to find they have no control at all. Irreplaceable images, photos, and history are often lost, as well as items of financial value.
However, almost every U.S. state has now passed the Revised Uniform Fiduciary Access to Digital Assets Act, or RUFADAA, and experts are gaining a better understanding of how this law helps their clients determine what happens to their digital assets after they die.
4 Steps to Take in Light of RUFADAA
This law allows your clients to name a digital assets fiduciary in their last will and testament. The person who is designated has legal authority to gain access to their digital assets as dictated in the will. If they also list their wishes for disposition of those assets, their wishes supersede the terms-of-service provisions of each individual site, giving the client control.
This is a game-changer. However, these provisions only apply if clients take specific action, so it is important to educate clients and their family members.
To take advantage of this act’s provisions, here are four steps you can take together with clients:
1. Help clients inventory all digital assets. It is helpful to classify them under categories, such as communication (email, contacts, phone log-in); rewards programs (hotels, airlines, restaurants); shopping (eBay, Craig’s List, department stores, Amazon); online data storage sites (iCloud, data back-up sites); finances (online payments, banking or investment accounts, Bitcoin); social media (Twitter, Instagram, LinkedIn, Facebook, SnapChat); gaming sites; and fantasy leagues (especially if there is real money involved).
2. Ensure their will names a digital assets fiduciary, plus an alternate in case that person cannot serve.
3. Either in the will or in a separate document that is referenced in the will and kept with it, have clients list their wishes for each asset. For example, do they want their social media shut down or memorialized? Who gets points? Who has access to emails, texts, and social media sites, and what should they do with them? Where do pictures go?
4. To facilitate the fiduciary’s access, inform clients about the available services, such as LastPass, that generate secure passwords for every site and store the passwords and user names. Using provisions for denial of access until death, the client should then give the named fiduciary the master password to that service, plus instructions for any two-factor authentication. Using one of these services keeps passwords and user names out of the will, since the will becomes a public record upon death.
Begin following these steps so that you can help your clients and their families gain more control over their growing list of digital assets and prevent a lot of future headaches. For help ensuring your wishes for your digital assets are able to be carried out after you die, contact us at Wilson and Wilson Estate Planning and Elder Law, LLC, 708-482-7090 or wwilson@wilsonwilsonllc.com