Digital assets remain among the most beguiling aspects contemplated by my estate planning clients. Our online personalities are our photo albums, diaries and memory books. How can we maintain our privacy while also allowing the collection and transfer of these assets upon our deaths?
As of January 1, 2017 the California legislature is helping its residents navigate that question. A new law facilitates access to digital assets by executors, successor trustees, and agents under powers of attorney to access a decedent’s digital assets (social media and email accounts).
The law establishes the ways that your representative can access your online accounts.
The first and most straightforward path, is to provide instructions directly to the “custodian” (the holder of the information, i.e. Facebook). This is similar to a beneficiary designation on a bank account. You can alert the custodian that when you die, you would like your agent to have access to your account. Like a beneficiary designation, this will override your will or other estate planning documents.
In the absence of a designation though an online tool, the custodian will look to your estate planning documents to determine who has authority to deal with your online account. However, your will, trust or other document must specifically authorize your representative to receive the content of your electronic communications. General authority to manage assets in an estate likely will not be satisfactory.
If there is neither a specific designation nor an estate planning document, the custodian will apply its own terms of service to determine how to disclose information. This option leaves discretion to the online service as to how your information is released, and therefore is the least desired result.
The law has some notable exceptions to its applicability. A personal representative cannot gain access to a decedent’s business emails that are held with the decedent’s employer. Also, access is not granted to representatives if a person is merely incapacitated and not deceased. The law does not provide access to bank accounts or financial accounts.
The best course of action is to find out if each of the online services you use has a tool to designate a person to receive your information held with that service. It is also wise to review your estate planning documents to ensure you have specifically authorized your personal representative to manage your digital assets. And finally, discuss with your attorney if a Power of Attorney for Digital Assets is warranted for your estate.
By Alexandra Smyser, Esq.