A typical Estate Plan includes a will, perhaps a trust, and powers of attorney for property and for health care. These documents are prepared by your attorney, signed and witnessed, then stored in a safe place, preferably your safe deposit box. Among other things, these documents direct what happens to your property and assets after you pass away. Your executor and/or trustee can then take the proper steps to obtain the power to distribute your assets according to your directions. (In the event you become disabled, your property agent and/or trustee would manage your assets.)
Have you ever considered what happens to all your digital property? Digital property includes your email accounts, social media accounts, information stored in the cloud, as well as the online components of your business accounts. What will happen to your Facebook or Google account if no one knows how to access them? They will stay live, and possibly risk being hacked or perhaps provide an opportunity for identity theft.
How do you prevent this from happening? You can create a “Digital Estate Plan”. This will give your trustee(s), executor(s), or property agent* the information needed to access to your accounts. Not only will they will be able to manage any services or ongoing payments, the online accounts may also provide key information necessary in settling the estate and/or trust, or managing them in the event of your disability. Access to these accounts will also help determine whether your digital property has any financial value that needs to be reported and distributed to the appropriate parties.
What, exactly do I mean by Digital Estate Plan? First, it includes a list of personal digital property that doesn’t have monetary value (email and communications, social media, shopping, photo and video sharing, video gaming, online storage accounts, and websites and blogs that you may manage), personal digital property that does have monetary value (websites, blogs, art, photos, music, eBooks, intellectual property, other digital property that generates revenue for you, and accounts that are used to manage money and may hold money or credits, like PayPal, bank accounts, and loyalty rewards programs), and business digital property. (Digital property with monetary value may be specifically or generally included in your will or trust.) Second, your Digital Estate Plan includes access information (not in your will or trust).
This information should be in a secure location, for example, with your will and trust in your safety deposit box. Your executor and/or trustee (and property agent*) should know where to find the information. Your will, trust, and durable power of attorney for property should include additional powers for your executor, trustee, and property agent*. You may also wish to include some instructions. You may wish to designate a specific person or persons to assist your trustee or executor with the “Digital” items. Some articles on this topic may refer to this person as a “Digital Executor.” Some of the tasks include closing down online accounts, archiving photos and files that are stored online, and transferring income or income-generating sites to your beneficiaries.
If you wish to designate a specific “Digital” assistant executor/trustee, he or she should be trustworthy, reliable and detail-oriented. At the very least, this will give your family a good understanding of what is included in your “Digital Estate” and your wishes regarding its distribution.
*Note that an agent named under a Power of Attorney for Property has powers only while you are living. The agent’s powers are extinguished on your death.
Illinois now has a specific law, the Illinois Revised Uniform Fiduciary Access to Digital Assets Act 755 ILCS 70/1 et. seq., enacted in August of 2016, that addresses these concerns. We include language in our wills, trusts, and powers of attorney intended to comply with this law and give property agents, trustees, and executors the powers they need to perform this vital function. It is fair to say that if your estate planning documents were prepared before 2016, it is unlikely that they contain the appropriate language.