Digital Assets and Estate Planning – Why Your Will May Not Be Enough

Web Admin - Friday, October 21, 2016
Long Grove estate planning lawyersIf you are like most people, you probably have a slew of digital content, and it may be held in several different online accounts. You might have music on iTunes, books or movies on Amazon, photos on Facebook or Instagram, private and business emails, and even an app that tracks your frequent flier miles. Having this content is not necessarily problematic, but troubles can arise if you pass away before assigning a digital fiduciary. What is a digital fiduciary, and why do you need one? The following information explains. 

What is a Digital Fiduciary? 

A digital fiduciary is essentially a person who has been given legal access to your online account. They can take actions that are in accordance with your wishes, such as deleting an account that you no longer need, closing out a digital subscription, transferring content to preserve photos or music, or using frequent flier miles and digital gift cards for themselves. Of course, this only happens if you assign one using the proper legal channels. Fail to do so and your content could be lost forever. 

Why Your Will is Not Enough 

In 1986, Congress enacted the Stored Communications Act (SCA). Designed to protect the online content and privacy of American citizens, and a part of the Electronic Communications Privacy Act, it was essentially a digital extension of the Fourth Amendment. Unfortunately, Congress had not anticipated how problematic the SCA would eventually become for fiduciaries. 

You see, the SCA prohibits digital account custodians, like Facebook and Google, from disclosing personal information about their users. These custodians protect themselves through user agreements, which you probably agreed to when you opened the account. Of course, few people actually read these long and confusing agreements, so they rarely understand what is at risk. Think you can solve this problem with a simple will? Think again. 

Cases across the country indicate that a will may or may not be helpful when trying to gain access to a digital account. In fact, even after an executor has met all the demands of a custodian, such as supplying a copy of a death certificate and a copy of the will, they may still only gain partial access to your account. One family did not even receive that. Instead, they were given a CD with their son’s public photos, which left them with no way to gain access to anything that remained private. 

Assigning a Digital Fiduciary 

Illinois recently took steps to help estate executors gain access to online accounts that they might have otherwise been unable to reach. However, there are still many issues that can arise if you do not specifically designate a digital fiduciary. You can now do this using an online tool that keeps all your account information in one easy-to-access place. As expressed in the next section, this tool can also help you minimize the risk of certain breaches of your privacy. 

How Much Power Does a Digital Fiduciary Have? 

It can be troubling to think about your spouse finding photos of an ex-girlfriend that you just could not bring yourself to get rid of, or your children reading an unpublished blog entry about a personal and sensitive matter. There could be emails that you do not want your family to access, or content that you do not want them to read. Just how likely is it that they will gain access to this information? 

Though a digital fiduciary can override the privacy clauses in user agreements to provide access, all that they do is supposed to be in your best interest, and in accordance with your wishes. You can instruct them by clearly defining it in both your will, and your online tool. Further, you can leave off user names and passwords for accounts that you do not want your fiduciary to access. If all else fails, plan ahead and transfer any sensitive content to a place that will not be accessed by your fiduciary. 

Contact Our Long Grove Estate Planning Attorneys 

If you want to ensure that your digital content is protected but still want to preserve your privacy and your family’s well-being, Drost, Gilbert, Andrew & Apicella, LLC can help. Dedicated and experienced, we offer comprehensive services to fit your family’s needs. Call 847-934-6000 and schedule your consultation with our Long Grove estate planning lawyers today.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.


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