Accessing the Digital World

We are using the digital world more and more with each passing day.  Not only do we use it for communicating and entertainment, but we also use it for storing and accessing our asset information.   You may know your logins and passwords, but what happens if you pass away or are not able to access the information due to any number of reasons – incapacity, illness, or simply because you forgot?

In more and more estate administrations, we are finding it more and more difficult to obtain information about assets and liabilities because rather than receiving paper statements, so many of us are going paperless and receiving information digitally. 

How can this affect the administration?  The decedent could own assets that if digital access is not available, they would not necessarily be located.  If there are liabilities, they may not become known until collection efforts are commenced and demands for payment start appearing among the decedent’s mail.  There could be penalties and interest for non-payment.  Further, once an internet service provider learns of a user’s death, the license for use expires and access to the account and all of the digital data is usually cut off.  This can happen even if the fiduciary knows the login and password. 

You may ask how this can happen – well, it is all in the “fine” print.  When you create an account, there are the Terms of Service Agreements that the majority of us do not read but merely click through the acceptance of them so that we can move on.  What we may not realize is that the right to access the digital content stored on the internet service provider servers are usually considered personal and are non-assignable to anyone else. 

So, what is the answer?  Check your internet service provider to see if there is the ability to add an individual as a party who can access your account for limited purposes. 

There are conflicting federal statutes and state statutes that govern the actions of fiduciaries.  This has led to the work on the Uniform Fiduciary Access to Digital Assets Act (UFADAA) to help alleviate the differences between federal and state statutes.  However, even with such an Act, there can still be challenges and you should check your estate planning documents to ensure that they contain language which grants your fiduciary (power of attorney or executor) access to your digital assets. 

You should not use a work-related email account for accessing your personal digital content as most employers will not allow a fiduciary to access a deceased or former employee’s email account. 

If you are fully digital, you might want to consider requesting that once a year you receive hard copy statements of your assets that will provide information if and when needed.  The prior year’s statements could be destroyed when the current statements are received, thereby reducing the amount of paper documentation you have on hand.

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About the Author

Kay Sowa is a paralegal in the Trusts and Estates Group at Capehart & Scatchard, P.A. She is an IRS Enrolled Agent, an Accredited Estate Planner®, and a Certified Trust and Fiduciary Advisor. She oversees the trust and estate administration practice for the firm. She is an accomplished author and lecturer who has frequently spoken on behalf of a number of organizations including the National Business Institute and the Institute of Paralegal Education.

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