Digital Assets

Nowadays, we are all inundated with technology.  It can certainly be confusing keeping track of all the passwords and PIN numbers we need in order to read our emails, access financial information, or even to simply take out cash from an ATM machine.  That confusion is made worse when security concerns mandate that passwords are changed frequently.  Most people have experienced the frustration of having forgotten a password and having to then go through the hassles of resetting it so you can get to the virtual destination you were trying to get to in the first place.  Now with all that in mind, have you ever stopped to consider what will happen to all those usernames, passwords and PIN numbers, and the digital information they lead to, if you become unable to handle your financial affairs or after you die?

At the end of 2013, the Pew Research Center published an article entitled “What happens to your digital life after death?”  See http://tinyurl.com/kuwy7o2.  The article observes that as of 2007, Microsoft estimated that the average user of the internet had 25 different online accounts of various sorts.  The article explains how the laws of most states are quite antiquated for dealing with digital access in the context of estate settlement. 

It explains the plight of a Virginia family who were devastated by the suicide of their 15 year old son in 2011.  When the grieving parents sought to gain access to their son’s Facebook account to search for answers about why he would have done such a thing, their request was denied.  Relying on current state and federal privacy laws, Facebook insisted that the parents could not be given access to their son’s account.  That case then spurred Virginia’s state legislature to pass legislation concerning post-mortem access to digital information. The Pew article also reports that Connecticut and five (5) other states have passed legislation as well.  But those laws vary widely and there is as of yet little in the way of uniformity on how states are going to be addressing the pertinent issues.

Apart from the issue of whether or not loved ones can gain access to a digital account they already know about, there is the issue of figuring out where all those accounts are in the first place.  In July 2014, PBS News Hour did a piece featuring a tech entrepreneur named Glenn Williamson who experienced firsthand the difficulties when he was called upon to serve as fiduciary after his 73 year old mother died unexpectedly.  See http://www.pbs.org/newshour/bb/happens-digital-presence-death/.  After spending an estimated 20 hours or so searching, Williamson located 13 different accounts his mother had, including email, shopping websites, and social media accounts.  Some of those had real value.  For example, his efforts allowed him to receive 54,000 airline credit miles from United Airlines that his mother had not used while she was alive.  Williamson’s personal experience led to his creation of a company he calls “WebCease,” which performs such searches for digital assets of loved ones after they pass.  See http://webcease.com/.

Williamson observes that traditionally, fiduciaries settling estates could gain broad access to all of the assets and financial affairs of decedents.  Now, our prevailing financial privacy laws stand in sharp contrast to that traditional access, and the legal system has a long way to go to reconcile that issue.

In our practice, we have now added a provision to our standard Durable Power of Attorney document that provides your agent with authority over your digital assets during your disability.  We also recommend that families document their online accounts for future reference, to reduce or even eliminate the frustration and confusion that can otherwise arise.

Please call us at 860-769-6938 if you have any questions about the issues presented above or if you care to discuss any other planning issues with us.

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