Dana Carlson Gentry, Esq., Board Certified in Wills, Trusts & Estates
Do you communicate with friends by email or texting? Do you review your bank accounts or brokerage assets online using personal passwords? Do you have a social or business networking account? Do you store personal photos on the internet in the “cloud”? Do you have frequent flyer bonus points or credit card rewards? If your answer to any of these questions is yes, then you have “digital assets”.
Do you know what happens to those assets if you become incapacitated or die? The answer may surprise you. For every digital asset that you have, you have most likely checked the box and agreed to the terms of that particular entity or company’s contract. More than likely that contract has privacy terms which may prevent your agent under a durable power of attorney or your executor under a Will from accessing the online account information. Although you may have been meticulous in telling your family where they can find your list of codes and passwords (thinking that such information will alleviate the problem), your family members may not be considered authorized users under those accounts, and if they attempt to access those accounts they could be violating federal or state privacy laws.
Some of the internet providers for digital assets have begun to include in their contracts provisions that allow an authorized personal representative or agent to access these accounts in appropriate circumstances under strict and specific rules of the provider; others have not. A few states have passed laws authorizing executors or agents to access such assets to varying degrees. Florida is reviewing the matter but has not yet enacted legislation.
What can you do in the meantime? Here are a few suggestions:
1. Make sure that your durable power of attorney and Will specifically authorize your agent or executor to access your digital assets. While there are no guarantees that an internet contractor, asset custodian, or provider will honor such authorizations, having such a clause in the appropriate document is at least a start and evidences your intent to provide your agent or executor with that authority.
2. Make a list of all of your digital assets which your agent or executor can easily access if and when necessary. If you are reluctant to provide a complete list, then provide your agent or executor with the information to access your personal computer and the passwords contained on it. If you are married, be sure that those passwords are available to your spouse. The incapacity or death of a love one is a very emotional time for family members. Hiring a computer expert to break codes and access information stored on the incapacitated or deceased person’s computer makes the whole process that much more stressful.
3. As for your personal emails or photographs, make backup DVD’S or CD’S of that information (possibly in PDF or JPG format) so that your loved ones will have access to the family memories and history you wish to share.
4. If you have gone “paperless” with your financial information, download in PDF format on your personal computer and copy to a disc or thumb-drive all your bank and brokerage accounts’ monthly statements for the last three (3) years. (This procedure should also be followed with any personal bills that are paid online for household, medical or other matters, although the number of years will vary depending on the type of bill).
5. If your income tax returns are prepared and filed electronically, then also download to a disc or thumb drive copies of those returns for the last three (3) years along with any relevant supporting documentation used in preparing those returns.
These are just a few suggestions to make it easier on your selected agents and loved ones when you need assistance. If you would like a review of your current documents relative to this issue or any estate planning issue, please call any of our estate planning lawyers at 941.748.0100 and we will be glad to assist you. To contact Dana Gentry, Board Certified in Wills, Trusts and Estates, email her at dgentry@blalockwalters.com.
