Estate Planning In The Digital Age Posted August 9, 2019 by Brandi VanAntwerp

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Anne Sallee Mason

By: Anne Sallee Mason
Attorney At Law
Neale & Newman, LLP
1949 E. Sunshine, Suite 1-130
Springfield, MO 65804
(417)882-9090
amason@nnlaw.com

When completing your estate plan, it is important to remember your digital assets. In August of 2018, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) became effective in Missouri. For the first time, fiduciaries are given clear guidance in how to access a decedent’s digital account information without violating state and federal laws which prohibit unauthorized access to someone’s personal computer systems, which encompasses not only computers but also cell phones, laptops, tablets, GPS, DVR/TiVo, and other electronic devices.

What are digital assets and digital property? A digital asset is defined as “an electronic record in which an individual has a right or interest”. This includes: personal accounts on your computer where you store photos, videos, messages, music, or books; social media/networking accounts; financial and business accounts; email accounts; voicemail accounts; web pages and blogs; online purchasing accounts such as PayPal and Amazon; online sales accounts such as eBay or Craigslist; video games; and much more. Your digital property would also include frequent flyer, hotel, credit card and other accounts with points or rewards. When you die, how is your fiduciary going to access these accounts and the necessary information that they contain?

There are two different issues involved in accessing your accounts and information. The first one is that your fiduciary must have your permission to gain access. Without permission, they will be violating both state and federal laws, and possibly your Terms of Service Agreements with the various companies. And, secondly, even if your fiduciary has authorization to access the accounts, it won’t be possible without the required login information.

As part of your estate planning, you should execute an authorization giving the administrator of your estate (whether probate estate or trust estate) the authority to access and handle your digital property during the administration of your estate. This can be done in your Will and/or Trust Agreement as well as by a separate notarized authorization document. In addition, you should develop and maintain a list of all digital property/assets, all security usernames and passwords, and the answers to any secret security questions for each account. There are free applications available to assist you in storing this information, including Last Pass, KeePass, Norton Identity Safe, Roboform, and 1Password. Finally, your estate plan should provide for the disposition of any digital assets that have value, be it sentimental or monetary.

If you have not specifically authorized access to your digital assets through your estate plan, access, and possibly disposition, will be governed by the Terms of Service Agreement (TOSA) for each of your accounts. Most people have no idea what the TOSA provides. Some service agreements terminate at death and some do not; some accounts are transferrable and some are not; some accounts prohibit anyone other than the original account holder from accessing the account; and some agreements are governed by the state law of a state different from the state in which you live. Your fiduciary will also need to be mindful of state and federal laws governing computer fraud, hacking, and other intentional unauthorized access. If you have left your fiduciary without permission or the information necessary to access your digital assets/accounts, and the TOSA is not of assistance in obtaining access, they may be forced to petition the Probate Court in order to obtain a court order authorizing access to your digital information. However, even with a court order, certain accounts may be impossible to access without knowledge of the password and other login requirements.

In the current state of society, it is important to discuss this issue with your estate planning attorney and be sure that digital assets planning is included as a part of your overall estate plan.