Digital Asset Planning

Digital assets and social media are central aspects of life for most working professionals. Financial transactions are conducted and recorded almost exclusively online and through our devices. Personal and professional reputations are intertwined with numerous social media accounts. Our login credentials thus hold the keys to some of our most important resources. However, traditional estate planning concepts and Massachusetts probate laws have not yet caught up with this reality. So the question for each of us is, what happens to control of these digital assets at death or disability, and what can we do about it? How do we protect our digital legacies and online identities?

The Massachusetts Uniform Probate Code grants a Personal Representative (“P.R.”) expansive powers in the management of estate assets. See, M.G.L. c. 190B, § 3-715. Notably absent from these powers, however, is the authority to manage digital assets. And while the Uniform Law Commission (authors of the Uniform Commercial Code and the Uniform Probate Code) have recently drafted the “Fiduciary Access to Digital Assets Act” (“FADAA”), most states, including Massachusetts, have not yet enacted such legislation (although a bill based on FADAA was filed here in early 2015).

A Patchwork Approach

At present, a P.R. must review the terms and conditions of each digital asset platform to determine her authority, if any, to manage the decedent’s accounts (unless the P.R. has already obtained the decedent’s login credentials). Authority granted by these platforms range from limited management powers to the mere ability to request removal of the account.

For example, Facebook does not recognize a P.R.’s authority, as such, to manage a decedent’s account. Rather, Facebook has a policy of “memorializing” accounts of deceased users and grants limited management rights to a designated “legacy contact.” In this way, management of a Facebook account by a legacy contact is analogous to authority granted “outside of probate” in that Facebook relies on a user’s lifetime designation of a manager, and not upon authority conferred by Will or by the Probate Court. Selecting a legacy contact and other options are available under security settings. Alternatively, certain “verified immediate family members” (which appears to include a P.R.) can request outright removal of an account if the request is supported by a Death Certificate and/or a copy of the Will and Letters of Authority. Under no circumstances does Facebook provide a deceased user’s login information.

Twitter recognizes the authority of a P.R. to remove the account of a deceased user but will never provide login access. LinkedIn appears to similarly recognize the authority of certain individuals to request removal of a profile.

A Personal Representative undoubtedly has the authority to obtain and manage assets held in the decedent’s bank accounts, but the P.R.’s authority to access the decedent’s online banking records for those accounts is less clear. For instance, Bank of America, like Facebook and Twitter, will never give a P.R. the decedent’s online login credentials.

It should be noted that management authorities granted above apply by their terms only in the event of death. Whether a Conservator appointed in the event of disability would have similar management is an open question.

FADAA Proposed Authority

Under the version of FADAA introduced in the Massachusetts legislature, a fiduciary would have the right to access the digital assets of an account holder and to take any action concerning the asset to the extent of the account holder’s own authority (subject to the terms-of-service agreement of that account). With regard to the account holder’s digital devises, the fiduciary would have the right to access the device and any digital asset stored in it, and would be considered an authorized user thereof. The Act contemplates that a P.R. or, in the case of disability, a Conservator, will qualify as a Fiduciary under the Act. Thus, the Act envisions a more traditional sense of authority for a P.R. over a decedent’s assets.

Practical Steps

Unless and until the FADAA is enacted in Massachusetts, those engaging in the estate planning process might want to give some thought as to who, if anyone, should have management or access to digital assets. If you think a digital asset successor is necessary, consider creating a list of all accounts and devices, along with passwords, that would permit access. Obviously, secure storage of such a document would have to be carefully considered. You may also want to consider including a paragraph of instructions in you Will regarding your intent as to the management or removal of your accounts. The successor may well be different than the person you nominate for Personal Representative. A tech-savvy, younger person may be a better digital asset successor, whereas a trusted, more experienced friend or family member may be a more appropriate P.R. Each social media platform’s terms and conditions should be reviewed and, if offered, “legacy contacts” and similar designations should be completed, or account termination options selected.

As with other estate planning considerations, making a plan for your digital assets will allow your friends and family to easily and securely protect your affairs. If you have further questions or want to discuss more about digital asset planning, please feel free to call us today.