Did you ever wonder what Facebook does with your account after you die? What about the pictures in your Dropbox account? Some careful estate planning could make sure all your virtual assets are protected.
In the past, after someone’s death, those tasked with winding up the deceased’s estate would find photographs, paper bills, a rolodex, and other physical items of the person’s estate. Times have changed, and many people conduct most of their communications and transactions online. Gone are the days of receiving letters and bills in the mail and making phone calls. They have been replaced with online bill pay, online banking, texting and online messaging. With these changes, it has become difficult to access those accounts. For example, banks can’t give access to someone’s online account due to privacy rules. In response, Michigan Governor Rick Snyder signed the Fiduciary Access to Digital Assets Act (“FADA”) on June 27, 2016.
FADA operates to allow you to appoint a fiduciary within your estate plan to have access to your digital assets, much in the same way you can appoint a power of attorney to have access to your safety deposit box. FADA allow you to grant the fiduciary access to a variety of online assets from Facebook photos to online investment accounts.
It is important to understand how FADA works, and how to incorporate it into your estate plan. Here’s what you should know before your talk to your estate planning attorney.
FADA defines a digital asset as “electronic record in which a user has a right or interest.” This includes items such as social media accounts like Facebook, email accounts like Yahoo email, and things stored in the cloud, such as a Dropbox account. Some assets are excluded, such as a work email account; FADA excludes an employer’s digital assets used by employees in the ordinary course of business.
FADA defines a digital custodian as “a person that carries, maintains, processes, receives, or stores a digital asset of a user.” These are the companies that control access to digital assets, such as Facebook, Dropbox, and Twitter.
Accessing Digital Assets
FADA allows four groups of people who can legally access your digital assets:
- A fiduciary acting under a power of attorney or will;
- Your personal representative, or the individual tasked with probating your estate;
- A trustee acting under your trust.
- A court-appointed conservator.
Some digital custodians allow you to designate a specific individual who can access your account. Facebook allows you to name a legacy contact, or an individual who can act as the administrator of your Facebook page after death. Other social media platforms, such as Twitter, permit only two options after a user’s death- account deactivation or leave the account as is.
If you name a fiduciary to access your digital assets as part of your estate plan, the fiduciary must provide the digital custodian with a written request for disclosure, a copy of their letter of authority granting them access to the digital assets, and a death certificate, if requested. The digital custodian may also have to provide information about the account, such as the unique identifier assigned to you by the digital custodian or a statement that access to your digital assets is necessary for a personal representative or trustee to administer your estate. In response to this request, the digital custodian may grant full access, partial access or a copy of a digital asset that you could have accessed if alive.
Including Digital Assets in Your Estate Plan
Granting a fiduciary access to your digital assets is an important element of a proper estate plan, particularly for people who conduct a significant amount of online transactions, such as online banking, online investing, and social media. To discuss including access to your digital assets under FADA as part of a comprehensive estate plan, please contact Benjamin Long of Schmidt & Long.