The Recently Passed Illinois Digital Assets Act

 

The Illinois Legislature recently passed a version of the Digital Assets Act, which took effect August 12, 2016. 

 

The Illinois Digital Assets Act officially allows an executor or administrator to access the digital assets of someone’s estate after they die.   

 

Here are the main points of the Illinois Digital Assets act: 

 

1. The owner of a digital assets or account (such as Facebook) may allow or prohibit their fiduciary (such as an Executor, Power of Attorney for Property; Guardian; or Administrator) – access to some or all of the user’s digital assets either through a written document such as a Will or Power of Attorney or 2) by registering with the website directly if they offer something like that.  

2. Does not apply to a digital asset of the employer used by an employee in the ordinary course of the employer’s business. 

3. Fiduciary is not given any additional or expanded rights other than what the user had.

4. The Custodian does not have to provide a fiduciary with a digital asset that has been deleted by a user.

5. Custodian can assess a “reasonable fee” for providing the digital access.

6. Fiduciary must give custodian the following documents in order to access digital assets.

   • Written request for disclosure in physical or electronic form

   • Certified copy of death certificate by the user

   • Certified copy of Letter of Appointment

   • Copy of Will, trust, power of attorney or other evidence of disclosure (not needed if given access online)

7. Once request is made then the provider has 60 days to provide information or terminate the account.  If not – fiduciary can take them to court to get a court order.

 

 

How to Plan for Your Digital Assets: 

 

Here is some practical advice on how to plan for your Digital Assets after your death: 

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1. Think about whether you want others to have access to your Facebook account or Gmail account after you die.

   • Are there photos you would not want people to see? 

   • Is there sensitive information that you wouldn’t want people to know?

   • Is there information that you would definitely want your family to have?   

2. Address what access your fiduciaries would have to your digital assets in your estate planning documents such as your Will, Power of Attorney or Trusts.  If you don’t authorize access to your digital assets to another person – companies like Facebook and Google have the legal right to deny access to anyone but you. 

3. Some companies have webpages that allow you to register a “Legacy Contact” after you die.  Here is a link for Facebook’s policy.  Here is a link for Google’s policy on what happens to your account when you die. 

4. Delete any and all information you would not want someone to see.  According to Illinois Digital Assets Act – companies cannot go back and provide information that you have deleted. 

5. Do you want your Facebook account to be closed after your death or do you want it to become your “Digital Memorial”?  Currently there are millions of Facebook accounts of people that have died which have become Memorials for those people. 

Conclusion

 

Estate Planning for your Digital Assets is becoming more and more important.  Make sure you are prepared.  The Ritchie Law Office, Ltd. has added comprehensive language in Wills, Trusts and Powers of Attorneys that we draft for clients to cover digital assets.  If you have any questions on how you can incorporate planning for your Digital Assets as part of your overall estate plan, please contact the Ritchie Law Office, Ltd.