Think about the information you store online. There’s the Pinterest page where you keep a collection of family recipes, the Instagram account where you keep your vacation photos, the email account that has contact information for everyone you know and the blog where you keep a memoir you’ve been typing away at for the past five months. There are also your online bank and investment accounts, where at the financial institution’s request to go paperless you now keep records of every transaction they made on your behalf, and a series of other legal/financial documents you or your loved ones might need at a moment’s notice.
Now think about what happens to this information — all of which is stored on a password-protected website that only you can access — when you die. The article “Estate planning in a digital world” from The (Bend OR) Bulletin says that you can avoid personal, financial, and legal headaches associated with losing access to online accounts by creating a Virtual Asset Instruction Letter.
A Virtual Asset Instruction Letter is a document in which you can list your online accounts, the passwords for each one, and instructions explaining what, if anything, should be done with the content each account holds. However, the article says there’s a catch. Even if they have permission people are breaking the law when they use someone else’s password to access their online accounts. There’s a 30-year-old federal statute that’s still on the books that makes it tough in an era of increasing online usage and information. The federal Computer Fraud and Abuse Act of 1986 threatens criminal penalties for people who access online information “without authorization” or in a manner that “exceeds authorized access.” But the legislation doesn’t define what either of these terms means.
The article notes that the same ambiguity exists in many online service providers’ Terms of Service Agreements. You know, the huge documents we just scroll through and check that we’ve read without really reading. These terms can mean someone who accesses someone else’s online accounts risks civil and criminal actions for violating the Computer Fraud and Abuse Act.
Folks in the Pacific Northwest are working on the Uniform Fiduciary Access to Digital Assets Act through the Oregon Legislature during this year’s session. The UFADAA makes it clear the executor of a person’s estate, court-appointed guardian or conservator, or their trustee or another fiduciary has the authority to access the person’s online accounts to gather and distribute digital assets, prevent identity theft, and console loved ones with images and stories posted on social media.
Oregon’s UFADAA wouldn’t create a new law—but would instead update the state’s existing fiduciary codes to cover an individual’s digital assets. Similar bills are being considered by legislatures in Idaho, Nevada, Washington and 20 other states this year.
Talk to a seasoned estate planning attorney to see how digital assets are currently being treated in your state.
Reference: The (Bend OR) Bulletin (May 29, 2015) “Estate planning in a digital world”