What happens to your digital assets when you pass away?
Photos, email, and other data stored on social networks and in the cloud can become inaccessible upon death
By Barbara Craig, Attorney at Law
Besides arguments about money, the most heated discussions I hear in estate dispute cases are over who gets the family photo album. But times are changing. Photos are rarely printed and placed in photo albums any longer. Even documents are more likely to be stored in the cloud than in a file cabinet. Online storage services are password-protected and often inaccessible to surviving family members. So what becomes of your digital assets when you die?
Your digital assets could disappear upon your death
Nearly all social media networks, such as Facebook and Twitter will close your account upon learning of your death. Your digital images and data become inaccessible upon your death because they are locked away on the company’s servers, never to be seen again by your loved ones.
If your designated representative has access to all of your tangible assets such as real estate and personal property using various estate planning tools, why is it that your digital assets are not within their control as well?
Your digital assets and the Uniform Law Commission
Laws governing accessibility to these digital assets are in need of updating and finally the Uniform Law Commission is doing something about it. The Uniform Law Commission is made up of state appointed lawyers, law professors, and judges who draft and promote enactment of laws that solve problems which are common to all of the states.
On July 16, 2014, the Uniform Law Commission approved the Uniform Fiduciary Access to Digital Assets Act (UFADAA), whereby appointed representatives such as trustees, executors, conservators, guardians, and agents with power of attorney are granted the ability to access your digital assets, assuming proper language is included in your estate planning documents.
Your fiduciary would be able to override a service provider’s terms of service upon presentation of the appropriate documentation that allows them access to your social media and other electronic content provider sites, so your family and heirs can have access to your digital assets.
The UFADAA is not mandatory but serves as a model that many states will follow. Some states already have similar legislation. The California Legislature is currently considering legislation that would allow appointed representatives of your estate to have access to your email but only with approval from the probate court.
Protecting your digital assets and planning for the future
Unfortunately probate is a costly and arduous process. Hopefully, our legislature will consider broader legislation which includes considerations for all of your digital assets and one that will allow for a smoother process without court supervision.
Even though this is not settled law in California, it’s a good idea to plan now for the inevitable. Digital media is here to stay. Including language in your estate planning documents to allow your representatives access to your data is a small and simple detail that can save time, aggravation, and money later.