Comprehensive Guide to Estate Planning for Your Digital Assets
This Article was originally published on October 25, 2016 and updated and republished on March 6, 2020.
What happens to your social media accounts, your e-mail, your photos and documents saved in the cloud or your other Digital Assets when you die?
What Are Digital Assets?
The Illinois Digital Asset Act defines Digital Assets as "an electronic record in which an individual has a right or interest." Prior to the Illinois Digital Asset Act, access to Digital Assets were controlled in large part by private User Agreements between consumers and companies like Google and Facebook that were "agreed to" when a new account was opened. These User Agreements generally stated that no one else could access your account - even after you died or became mentally incapacitated.
Denying access to these accounts after someone has died or became mentally incapacitated became a problem as we all organize our lives online now - the average person's email is associated with over 130 online accounts (Click Here to see more statistics). Families, heirs and Fiduciaries need to have access to these online accounts and Digital Assets to find important photos and documents, discover bank accounts or other assets belonging to a decedent, and to provide closure.
Lobbyists and state legislatures had argued, litigated and negotiated for years about how and when families or fiduciary agents could access online accounts of someone who has died or has become mentally impaired. On August 12, 2016 Illinois passed the The Illinois Digital Asset Act to address these issues.
Illinois Digital Assets Act
On August 12, 2016, the Illinois Legislature passed a version of the Uniform Digital Assets Act. The Illinois Digital Assets Act officially allows someone's Fiduciary to access the Digital Assets of someone’s estate after they die or become mentally incapacitated.
Here are the main points of the Illinois Digital Assets act:
1. The owner of a digital assets or account, such as Facebook, ("Custodian") may allow or prohibit their fiduciary, such as an Executor, Power of Attorney for Property; Guardian; or Administrator, ("Fiduciary") – access to some or all of the user’s digital assets either:
through a written document such as a Will or Power of Attorney;
by registering with the website directly if the Custodian offers that service (see 2020 Summary below for links to registration pages of various websites).
2. The Act does not apply to a Digital Asset of the employer used by an employee in the ordinary course of the employer’s business.
3. The 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. The Custodian can assess a “reasonable fee” for providing the digital access.
6. The Fiduciary must give the 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
7. Once a request is made by the Fiduciary then the Custodian has 60 days to provide information or terminate the account. If that does not happen the Fiduciary can take the Custodian to court to get a court order.
Best Practices When Planning for the Digital Assets of Your Estate:
Here are the recommended best practices for planning for the Digital Assets of your estate:
1. Make a list of all your online accounts including social media, e-mail, cloud storage, etc. Make sure that you have the login in ID and password for each of these accounts organized in a way that your Fiduciary or family members could find them if needed. You can write down this information on a spreadsheet or save it in an online password manager such as LastPass.
2. Review our 2020 Digital Asset Policy Survey (see below) of the most popular online accounts and register your Fiduciaries and preferences directly with each company.
3. Think about whether you want others to have access to your accounts (like Facebook or Gmail) 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?
4. Delete any and all information you would not want someone to see. According to the Illinois Digital Assets Act – Custodians cannot go back and provide information that you have deleted.
5. Make sure that your Estate Planning documents such as your Will, Trust, or Power of Attorney documents properly address the Digital Assets of your estate. At the Ritchie Law Office, Ltd. it is standard to include language in Wills and Trusts allowing your Executors and Trustees to access your online accounts and Digital Assets.
Addressing your Digital Assets in your Estate Plan is important. The Ritchie Law Office, Ltd. adds comprehensive language in the Wills and Trusts 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.
2020 Digital Asset Policy Survey of Popular Websites, Social Media Accounts and Online Services.
Since the Digital Assets Act was passed in 2016 companies have created Digital Asset policies on allowing Fiduciaries access to User Accounts.
Below is information and links to the Digital Asset policies of some of the most popular websites, social media accounts and online services. Links are provided to each company's policies so you can set register your Digital Asset preferences directly with each company.
Facebook: Facebook does a great job explaining the options of handling accounts for those who have passed away. Upon your passing, your account can either become: 1) permanently deleted or 2) memorialized. If you choose to have your account memorialized, the word "Remembering" will be shown next to your name and whoever you appoint as your Legacy Contact looks after your account. To read more about Facebook's memorialized accounts, click here.
Google: Google offers an Inactive Account Manager. This function allows you to specify a period of inactivity that triggers the Inactive Account Manager. When setting up the Inactive Account Manager, you will be able to choose when Google should consider your account inactive, who to notify, what to share, and if your inactive account should be deleted. Then, once the set period of inactivity is reached, whoever you set as a trusted contact will be notified and they will be able to carry out your wishes. Click here to learn more about Inactive Account Manager and click here to set your Inactive Account Manager up today.
YouTube: Because YouTube is owned by Google, all requests regarding deceased user's accounts are done through a Google form. Click here to access this online form. Near the bottom of the form, there is a place to select which of the following your request is about: Google Account or YouTube. They also require you to upload a copy of your government-issued ID, the deceased's death certificate, and any additional documents.
Yahoo: Yahoo is more limited with allowing access to loved one's accounts. As it is their policy to honor the initial agreement the account owner made, Yahoo cannot provide passwords or allow access to the deceased's account. You must process a request to have a loved one's account closed. Click here for more information on Yahoo's policy and the steps it takes to have a loved one's account deleted. We recommend that if you wish to have information recovered from your account or allow a family member or friend to have access to your account after you pass, that you store your username and password in a secure spot that the person has access to.
PayPal: PayPal is only able to take instructions from the authorized executor or administrator of the deceased's estate. PayPal is similar to Yahoo whereas they require documentation to meet legal requirements. Once the executor or administrator has submitted all required documentation, PayPal will process the request and will inform you if there is a balance on the account and, if positive, they can release the amount a few different ways. Click here to learn more about PayPal's policy.
Instagram: Instagram offers memorialized accounts similar to Facebook, however, a memorialized account on Instagram does not appear differently from an account that hasn't been memorialized. Instagram does not allow any changes to be made to photos or videos added by the person, comments on posts shared by the person to their profile, privacy settings, or their current profile photo, followers, or people the person follows. Also, memorialized accounts do not appear in public searches, like the Explore Section. Click here to learn how to request the memorialization of an Instagram account.