Estate Planning in the Digital Age

What happens to my Facebook photos after I die? Can I pass on my iTunes music library to my children? Can my sister access my personal email account? At one point or another, questions like these have probably crossed your mind.

To handle these types of situations, New Jersey adopted a law known as the Revised Uniform Fiduciary Access To Digital Assets Act (RUFADAA). So what is a digital asset? Legally speaking, any document, file, or account that you access primary through an electronic device (computer, smartphone, etc.), is known as a “digital asset”, and they can have tremendous monetary and sentimental value.

This article will discuss the RUFADAA’s key provisions and provide some practical advice on managing some common digital assets.

How Does The RUFADAA Work?

While the RUFADAA provides some much needed clarity to what was a complicated mess of state and federal privacy laws, it’s written in a manner that can be difficult to interpret. Here are some of the law’s key points:

• If you do nothing, the Terms Of Service Agreement (TOSA) controls

TOSAs are the often lengthy contacts that govern your relationship with an online service provider (for example, Facebook, Google, and Apple). In truth, most of us don’t read TOSAs very carefully, we simply scroll down to the “Agree and Continue” button and forget about them. But TOSAs are important to consider when planning for the future because they outline how your digital assets will be handled by the service provider after your death. And, unsurprisingly, the terms of most TOSAs are good for the service provider but not so good for you.

Essentially, if you do nothing, your loved ones will be relying on the Facebooks and Googles of the world to help them access your digital assets. And these companies are extremely reluctant to do so: there’s no shortage of heartbreaking stories of families stuck negotiating (often unsuccessfully) with tech companies to gain access to a deceased loved one’s iPhone or online account. Simply put, failing to take action means relinquishing control over information and images that mean a great deal to the people who matter to you.

• If you include specific language in an estate planning document granting someone access to your digital assets, this overrides the TOSA

While TOSAs seem pretty ironclad, if your will or other estate planning documents include a provision describing who has the right to access specific digital assets, your wishes will prevail over the TOSA. Bear in mind that while the person you select has a right to the digital assets you specified, they will have to provide documentation to the service provider, such as a copy of your will or death certificate.

• If a service provider offers an online tool, your choices will control even if your will or Power of Attorney says otherwise

If a service provider has a mechanism (or tool) that allows you to select who will have access to your account, and to what degree, the choices you make will prevail over the TOSA and your estate planning documents.

For example, Google offers users an Inactive Account Manager, a tool that allows you to chose who (if anyone) has access to the full range of Google services you use, including Gmail, G-Suite, and Google Drive. Once your account hasn’t been logged into for 3 months, Google will notify up to 10 people of your choosing that you have granted them access to your account. Also, you can choose which applications each person can see. For example, maybe you’d like your children to have access to your entire account while a friend may only access your Google Drive. You can also opt to have your entire Google account erased after a given period of time.

Facebook also offers a similar tool, called a Legacy Contact Manager, which allows you to appoint one person to oversee your account once you’ve passed away. Your legacy contact can write a memorial message, change your profile photo, and download a copy of anything you’ve uploaded to Facebook, including photos. They cannot, however, change anything you’ve posted to your Timeline or read your messages.

What about Apple services like iTunes and iCloud?

Apple’s TOSA, which covers key services like iTunes and iCloud, are pretty unforgiving:

“Unless otherwise required by law, You agree that your Account is non-transferable and that any rights to your Apple ID or Content within your Account terminate upon your death. Upon receipt of a copy of a death certificate your Account may be terminated and all Content within your Account deleted.”

In other words, the contents of your iTunes library, and anything you’ve stored in the iCloud, are no longer yours once you pass away. Now we know what you’re thinking: I paid for all of those songs and movies so why can’t I give them to my family or friends? The truth is, per Apple’s TOSA, you don’t own those items; you’ve merely purchased a lifetime rental.

Which brings us to the 4th important point about the RUFADAA: the law doesn’t grant your survivors and beneficiaries a greater right to your digital assets than you had. So, because your right to use Apple’s services terminate at the moment of your death, there is nothing to pass on. While Apple’s Family Sharing Plan could offer a potential work around, it’s best to speak to an experienced estate planning attorney about how best to preserve these assets.

Final Thoughts

Ultimately, you have virtually complete control over how your digital assets will be handled after your death. You just need to be proactive. If you have questions how to plan for the distribution of your digital assets, or would like to know how to incorporate your wishes into an existing estate plan, we urge you contact an experienced estate planing lawyer today.