In today’s technologically driven world, most people have at least one email account, online banking account, and social media account. These are just some examples of a digital asset. A digital asset is anything stored on computers, cellphones, or in a cloud-based storage system. The actual definition of digital assets is “an electronic record in which an individual has a right or interest.” Have you thought about what will happen to these digital assets if something happens to you?
In 2016, the Illinois Legislature passed the Revised Uniform Fiduciary Access to Digital Assets Act (the “Act”). The Act authorizes fiduciaries such as trustees, executors, or agents to access your electronic records. The Act provides default rules for your fiduciary to obtain access to your digital assets. If for some reason you do not want your fiduciary to have access to your digital assets, you should specifically deny access in your estate plan documents. However, if you become incapacitated or die, your fiduciary will likely need access to your digital assets to perform their fiduciary duties to the best of their abilities. If a fiduciary is not given explicit permission to access your digital assets, they cannot deactivate social media or other accounts. These active accounts leave open the potential for identity theft if they are not properly accounted for in estate plans.
The default rules apply for access to electronic records. There are different rules for access to electronic communications (e-mails). If you would like your fiduciary to be able to access the actual content of personal emails or messages, you should expressly state so in your estate plan documents. Without your express consent, your fiduciary would have to obtain a court order for disclosure of communications. This can be costly and time consuming.
Some custodians for digital assets, such as Google and Facebook, provide an online tool that allows you to designate n individual as a “designated representative.” The designated representatives are able to access your records from that specific custodian when you become incapacitated or die. A person specifically designated by you using such an online tool will take precedence over any other directive, so it is important that you make sure these are up to date as well.
Many people fail to include their digital assets into their estate plan documents. This can create unneeded steps or limit the ability of your fiduciary to access your electronic records. Managing your electronic estate is an integral part of creating an effective estate plan.