Our world has quickly become a digital one over the last few years. We don’t have photographs in albums anymore – they are stored digitally in “the cloud” somewhere. We don’t buy music on records, tapes or CD’s anymore – they are purchased digitally through Itunes, Amazon and Google Play. We are constantly being encouraged to pay bills and to do our banking and our shopping online. E-mails and texting have replaced sending letters through the mail. Social media sites such as Facebook are the preferred way to communicate with friends and have become by default the “diary” of our lives. In fact, the average person has 26 different digital accounts.

What Happens to Digital Assets when Someone Dies?

What happens to your facebook account or your e-mail account (and other digital assets you own) when you die?

For years the answer depended on what the user license agreement said for companies like Google and Facebook. These are the agreements nobody reads and clicks “Yes” or “Accept” when you open a new account with a company online. These user agreements said that only the account owner was allowed access to the account and attempts for family members to access these accounts were routinely denied by these companies. Facebook and Google have cited privacy reasons as the reason for this policy. Facebook, Google, Lobbyists and state legislatures have been arguing, litigating and negotiating for years on how families or fiduciary agents such as executors and power of attorneys can access online accounts of a someone how has died or has become mentally impaired. After many failed attempts all parties have agreed to a Uniform Law for all the states to adopt.

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
    1. Written request for disclosure in physical or electronic form
    2. Certified copy of death certificate by the user.
    3. Certified copy of Letter of Appointment
    4. 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:

  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 a 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.

This article is a service of Attorney Chad A. Ritchie and the Ritchie Law Office, Ltd.   We don’t just draft documents at the Ritchie Law Office, Ltd.  We ensure you make informed and empowered decisions about life and death for yourself and the people you love. That’s why we offer an RLO Estate Planning Discovery Meeting — during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today at (309) 662-7000 to schedule an RLO Estate Planning Discovery Meeting and mention this article to find out how to get this $750 session at no charge. You can also schedule an RLO Estate Planning Discovery Meeting through our online calendaring system by clicking here.