If you sign up for a program offered by Google, Apple, or other tech companies for management of your accounts in the event of death or incapacity, the terms of their program will cancel out any directions you include in your will, trust, or durable power of attorney.
Here are the details:
Companies like Facebook, Instagram, Google (Gmail), Yahoo, LinkedIn, and Twitter are known as “custodians” of their customers’ digital (online) information, communications, and accounts. When you open an account with one of these businesses, you are required to agree to their terms of service. You have basically signed a contract. These contracts contain “Terms of Service” and “Privacy Policies” that restrict access by others to your digital information. Custodians are reluctant to allow others to see clients’ digital information due to laws protecting customers’ privacy, business complications, and exposure to potential liability. The contractual provisions can prevent anyone from accessing your accounts, photos, documents, cloud-stored files and blogs, emails, and other personal documents held online.
In order to create a way to allow individuals to dispose of their assets after death or disability, a Uniform Law was drafted and made available to every state legislature. The uniform statute is called the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). Many states have adopted the statute, sometimes after making some changes to the language. Both Minnesota and Florida have adopted RUFADAA.
Now, it is possible to allow a family member, friend, or fiduciary to control and/or dispose of your online (digital) assets, even if the custodian has restrictive Terms of Service to which you have already agreed.
You may wonder why anyone has to bother with this. Why not just leave a list of digital assets with usernames and passwords and let your appointed person access and manage your accounts? The problem is that if you give someone your usernames, passwords, and pins, when they use them to get into your accounts, they may be doing something illegal. You may be exposing them to liability for hacking into your account.
You may wonder why you should care what happens to your accounts after you die. Here are a few reasons:
- Your family and loved ones may want to keep photos for sentimental reasons and to pass on to descendants.
- Your documents may be needed when administering your estate after you become incapacitated or die.
- You may want someone to delete your account after you are gone. Or delete certain emails, photos, writings, or other extremely sensitive personal items.
Arranging for your executor or trustee to have access to your digital accounts is a definite issue in estate planning.
Custodians are not required to offer a program (often called a “tool”), separate from their standard contractual Terms of Service, giving you a way to authorize someone to access your account information. However, if they do offer such a tool, and you use it, you are agreeing to a new contract with new Terms of Service. If you join one of these programs/tools, the custodian’s program terms may provide an exception to their ordinary privacy policies, but they also replace the instructions in your validly executed estate planning documents. The custodians, rather than you, will have ultimate control and discretion over who gets to see your information. They do not have to provide access to anything they do not feel comfortable releasing. Their program may give the authorized person access only to a catalog of the information, but not to the contents of the emails, photos, or documents. If that is what you want, then this may not be a problem. However, I cannot help but wonder what good it is to get a list of emails, without knowing what they say, or list of photographs or an account statement, without being allowed to see the contents.
If you have properly executed documents in place authorizing your fiduciary to access and control your account information, your directions will control access. You may include the authorizations in your will, trust, and/or power of attorney. However, the authorizations must be carefully drafted in order to meet the RUFFADAA requirements.
RUFFADAA gives fiduciaries, such as executors, trustees, guardians, and attorneys-in-fact under a power of attorney the authority to access an online account if the owner becomes incapacitated or dies, but this access is permitted only if the owner explicitly consents. A specific, written, authorization will be required.
Consequently, you should have a clear and legally effective estate plan for your digital assets. If you fail to include written, express authorization regarding your digital accounts, the custodian’s “Terms of Service” will govern. Some custodians do not permit anyone to access your accounts, or to close your accounts, let alone allow someone to view the contents of your digital communications. Some custodians’ Terms of Service terminate all rights to your content upon your death. Consequently, your photos, communications, and other digital content could be irretrievably lost.
What language do you need to include to legally (and successfully) provide a fiduciary with access to the contents of your online account records and give them the authority to keep or delete information and/or close the account? The language I include in my legal documents is designed to work with the relevant statutes. If necessary, I can prepare a separate stand-alone document with your specific and express wishes concerning your account data.
Choice of governing law is very important because some states have not adopted RUFADAA.
If you have any questions, please give me a call. I would be happy to help you put a plan in place.