5 Things to Know About Your Digital Estate Plan
January 8, 2018 by Arthur Orzame
Living like we do now in a semi-intangible world that is part real world and part cyber world, we need to plan for our demise in both when we set up our estate. We have social media accounts, email accounts, and cloud storage accounts, and we access brick-and-mortar accounts at our banks and favorite stores through other digital accounts. If you were to stop and count how many online accounts you have access to, you might be surprised. But when you die, these digital assets don’t die with you. They just hang on out there in cyber space, unless you plan for them like you did for your other possessions.
In Michigan, the Fiduciary Access to Digital Assets Act became effective in 2016 and establishes that we can now decide the legacy of our digital assets, such as whether or not we want someone to have access, how that permission must be provided, and what you want your designated person to do with the account (i.e., manage or delete). The law, however, is complex and difficult to decipher if you aren’t fluent in regulatory jargon. So here are five tips to remember when considering your digital asset plan:
1) You can allow or ban access.
Not only can you allow certain individual(s) access to your digital assets, you can also ban anyone you like from having access. For example, if you have a LinkedIn account and you want only your daughter to delete it, but you want only your spouse to have access to all your other accounts, you must make those designations in your will, trust of other document, in each account, or in writing using an online tool.
2) Legacy choices made on a social media account are given precedence over other choices.
Some social media providers have their own “controls” for designating a legacy contact. Facebook is one of them and provides several options that you set up in advance, including memorialization (this is where you choose a legacy contact) or permanent deletion. It is very important to understand that, according to the law, if you set up a legacy contact or other option within your social media account, it will override any similar or contradictory choices made in a will or other written document.
3) The same applies to directions in a will versus online directions that differ.
If you have specific directions in your will or trust pertaining to what should be done with your digital assets and then, using online tools, you direct someone you have chosen to do something else, your online directions will supersede the directions in the will, trust or other record.
4) All legacy contacts are not created equal.
There are several names given to different legacy contacts defined in the law Including a fiduciary, a personal representative, a conservator, a trustee, and a designated recipient. Each is defined differently and has specific responsibilities and limitations under the law. Consult your estate planning professional when deciding on how to define those who will manage your digital assets.
5) The “digital custodian” (e.g., Facebook, Google, Amazon, etc.) has the discretion to limit and/or charge for access.
If you want to allow certain people to access information in any of your accounts, it may cost them a “reasonable administrative charge” and access may be limited, depending upon what the digital custodian sees as necessary to accomplish the task designated in your will or other document. The digital custodian may also require documentation — such as a written request for disclosure, a copy of your death certificate, or any of several other defined documents — be provided to allow access to your electronic communications. In the event the digital custodian determines the request for access imposes an “undue burden,” a court order may be needed to proceed.
These are just a few tips to get you thinking about how you will manage your digital end of life. Of course, it is anticipated that the law will evolve to keep pace with technology and how we use it, so it will be important to keep up with those changes. To help you do that, a CPA or estate planning professional can answer your questions and assist you in making educated decisions about your digital assets, whether they are your photos on Facebook or your Amazon Prime account. Give us a call today or contact us here.