Issue 37.13
Because we spend a lot of time online – banking, shopping, social networking, etc., a new category of personal property seems to have emerged known to estate planners as “digital assets.” Digital assets include any work or possessions stored on computers, hard drives and the internet. They include photos, videos, e-mails and playlists. People also store medical records and tax documents. More and more financial institutions encourage account holders to sign up for paperless statements. The list – and potential value – continues to grow. To complicate matters, each of the assets may even require different user names and passwords.
When a person dies without a will (known as dying “intestate”), the state decides how that person’s assets are distributed. But digital assets such as e-mail and social networking accounts are so recent that most courts have not yet developed rules for how to distribute them when there are no instructions by the owner.
Even when there are instructions, there are other legal hurdles. Just because you have a user name and password with the user’s consent, you could still violate laws by accessing the other person’s account because many social media websites have contracts that protect the privacy of users.
Many people have arrangements to pay bills online or have assets online that are tied to PayPal, eBay or Amazon.com, etc. Business owners are also likely to store important information on computers, or have a domain name or a blog that can only be accessed by password or email.
For now, until there is legislation enacted that makes it permissible to access online accounts with the consent of account owners, it is probably wise to carefully consider all accounts that are accessed online, including photo-storing sites, PayPal accounts, social media sites, etc. and communicate details to permit access to your personal representative or the trustee of your estate lest important information be inaccessible and lost.
In conclusion, it would be wise to include with your estate planning documents a list of passwords and log-in information for all accounts that would be readily accessible upon your death.
Jeffery J. McKenna is a local attorney serving clients in Utah, Arizona and Nevada. He is the former President of the Southern Utah Estate Planning Council and a shareholder at the law firm of Barney, McKenna, and Olmstead with offices in St. George and Mesquite. If you have questions you would like addressed in these articles, you can contact him at 435 628-1711 or jmckenna@barney-mckenna.com.