Estate Planning in a Digital Age

Many of us have some sort of online presence, whether that be something as simple as an e-mail account or multiple social media profiles or accounts on sites such as Facebook, LinkedIn, Instagram, or Snapchat. Regardless of the extent of your online presence, the existence of any of these accounts could prove to be problematic after you’ve died.

On May 22, 2016, Minnesota adopted the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”), which can be found in Minnesota Statutes Chapter 521A. The law creates a clear procedure to enable access to or disclosure of online accounts and digital assets to a person’s fiduciaries. These fiduciaries may include an agent under a power of attorney, a court-appointed conservator of a living person, a trustee of a trust, or a court-appointed personal representative of a deceased person’s estate.

The Federal Stored Communications Act creates privacy rights to protect the contents of certain electronic communications and files from disclosure by certain online account service providers. If the privacy protections of the Stored Communications Act apply, an online account service provider is prohibited from disclosing the contents of certain communications and files unless the user provides “lawful consent.” RUFADAA provides a clear procedure under Minnesota law for fiduciaries to follow to request access to or disclosure of online account contents or other digital assets.

One of the more common scenarios in which access to online accounts becomes an issue is after someone has died. Under RUFADAA, a personal representative’s traditional power to manage tangible property is extended to include management of a person’s digital assets. There are a few ways a person can provide lawful consent in their estate plan:

• Utilize online tools through service providers, which allows users to determine the extent to which their digital assets may be revealed to third parties and fiduciaries (e.g. Facebook’s Legacy Contact tool);
• Include authority in a financial power of attorney for use while the person is living;
• Incorporate provisions in the person’s last will and testament or revocable trust for use after the person is deceased; or
• Create a separate stand-alone document (called a “record” under RUFADAA) to allow or prohibit disclosure to a fiduciary of some or all of an individual’s digital assets, including the content of electronic communications sent or received by an individual.

In conjunction with one or more of these options, it’s a good idea to maintain an updated inventory of your digital assets, including accounts, usernames, and passwords. Do be careful about disclosing this inventory to third parties, however, as disclosure presents a possible claim of a violation of the Computer Fraud and Abuse Act, in the event that a site’s terms of service prevent password sharing (many do!). Keep the inventory in a safe location with your other estate planning documents so that it is available in the event access to your accounts becomes necessary.

Another point of consideration is how you want your digital assets to be distributed after your death. For example, should your family photos and videos be copied and available to all of your children? Do you want to exclude certain beneficiaries from receiving some or all of your digital assets? Should certain accounts be deleted upon your death, or do you want your Facebook account memorialized?

We’re all connected in some way or another. Planning for the disposition of your digital assets is just another important component of a well-rounded estate plan.

P.S. Did you know Ward & Oehler has a facebook page? You can like and visit our page by clicking here.

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