Act now to assure access to your digital assets if catastrophe strikes.  Otherwise, your digital assets and accounts may be lost to your family and loved ones forever.

It’s no surprise that technology is rapidly changing our lives.  Smart phones are exponentially more powerful than the “main-frame” computers from the end of the 20th century, and with our increasing dependence on this technology, our lives become more and more “digital.”  This results in significant reliance on our “digital assets” including our email accounts, social media accounts, shopping accounts, banking and loyalty accounts, online assets and storage, and maybe even digital currencies like Bitcoins.

The problem.

While our lives may now be more convenient, the digital revolution has made our deaths or incapacity significantly more complex.  Our fiduciaries need to step in for us when a catastrophe occurs.  Our fiduciaries include the agents under our Powers of Attorney for Property, executors under our Wills, and successor trustees if we have a Revocable Trust, . They have the responsibility to identify, protect, and collect our property, including our digital assets, in the case of death or incapacity, which means they need the ability and the authority to access our digital assets. 

Unfortunately, the laws in this area have not kept pace with technology, and have been silent on the issue of fiduciary access.  Most of us take it for granted that our fiduciaries will have access to our digital lives and can sort things out when necessary.  Nothing could be further from the truth. 

There are many obstacles for fiduciaries trying to obtain access to our digital assets.  Here are just a few:

Login information.  The fiduciary needs to know the user names and passwords for every digital device and account.  Typically, the service provider will refuse to provide this information to anyone other than the original account owner, including a fiduciary.

Terms of Service.  When an digital account is set up, the user must agree to a “Terms of Service” agreement with the provider.  Many of these agreements provide that the account is non-transferrable and terminates on the death of the user.  Many do not allow anyone else to sign-in with the user’s login, not even a fiduciary who typically “stands in the shoes” of the user.

Computer privacy laws.  In 1986, Congress enacted the Stored Communication Act (SCA) and the Computer Fraud and Abuse Act (CFAA) as the foundation for our computer privacy laws.  Similar laws exist in the individual states, including Illinois.

Under the SCA, one is subject to a fine and jail for accessing “without authorization” another’s computer records.  While the SCA was aimed at computer hackers, its language is broad enough to include access by a fiduciary (especially when the terms of service say that no one other than the original user is authorized to access the account).   

The CFAA also criminalizes unauthorized access and bars service providers from disclosing the contents of digital accounts without the user’s “lawful consent.”

Unfortunately, these Acts do not reflect the current use of computers and other digital devices, but they do provide great concern for any fiduciary trying to fulfill their duties.  There is no “fiduciary exception” to these laws.  If a fiduciary accesses the decedent’s (or principal’s) computer without express authorization or in violation of the terms of service, they may be committing a crime and may be subject to being jailed.  Hardly a risk that most people would ignore.

A tough spot.

Our fiduciaries are in a tough spot with our digital assets.  When necessary, it is their responsibility to identify, protect and collect our property, including our digital assets.  However, lack of login information, lack of authority under the “terms of service” agreement, and the possibility of criminal prosecution for obtaining information from our computer accounts “without authorization” can make it impossible for our fiduciaries to access our digital assets. 

This lack of access can result in significant losses for ourselves and our beneficiaries.  One source estimates that $60 billion in assets have been lost because fiduciaries cannot find the accounts of the deceased owners.

A partial solution.

After several failed attempts to address this problem, the Illinois legislature enacted a statute in 2015 called the Revised Uniform Fiduciary Access to Digital Assets Act (the RUFADAA).  The RUFADAA attempts to balance the fiduciary’s need to access the owner’s digital assets in order to protect the value of the estate with the presumption that the owner wished their digital assets to remain private.

The RUFADAA grants fiduciaries some basic information about an individual’s digital assets.  However, access to the content of one’s “electronic communications” (e.g., email) is more complicated.  Under the RUFADAA, the service provider can provide a copy of an owner’s “electronic communications,” but only if the owner gives express consent to the provider to provide such communications to the fiduciary.

The RUFADAA addresses a serious problem and provides a method to protect one’s digital assets and permit a fiduciary to access those assets and accounts.  However, complete access is only available to those who modify their estate planning documents to grant express consent to their fiduciaries.

Do it now!

The only way to assure that your fiduciaries will be able to access your digital assets and accounts is to modify (or create) your estate planning documents and give your fiduciaries express consent to access your digital assets and electronic communications.  upon your death or incapacity.  Typically, changes will be made to your Power of Attorney for Property, Will and Revocable Trust.  While you’re at it, now is a good time to review your estate planning for any other changes that are appropriate.

Please contact me.

If you would like to provide access to your digital assets and accounts if you become disabled or upon your death, please contact me through this website or call me at 312-372-1880.

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