Digital Estate Planning – What Happens to Your Digital Content After Death?

DuPage County estate planning attorneysAmericans store everything from selfies and family photos to digital music and stock photography online. What happens, though, when the content owner dies?

Sometimes nothing; family cannot access it and it either stays where it was stored or is eventually deleted or removed. Then there are situations in which the owner knew that digital content had to be handled differently than physical assets. In these cases, the content can be downloaded, transferred, or otherwise used and accessed by a named fiduciary. The following can help you learn more about digital fiduciaries, including why they are important and how you can name one to handle your digital assets after death.

What is a Digital Fiduciary?

Digital fiduciaries are individuals who have been granted legal access to a decedent's digital content. This idea might be concerning for some, but a digital fiduciary cannot simply use and access content at their discretion. Instead, they are restricted to access and actions that are outlined in the decedent's estate plan.

So, for example, if you have online journals that you do not want your spouse to read but would like them to have access to family photos, you can grant them access to the accounts where your photos are stored. You would not share the information for your online journals.

Understanding Why a Digital Fiduciary is Needed

When Congress enacted laws to protect the content of individuals, they did not foresee the struggles that heirs and families would face when attempting to gain access to even simple information, such as an online music account or online photos. Of course, it is possible to outline your wishes for digital content in a will. However, few people update their wills as often as they update their passwords to online accounts. This can create all sorts of problems for heirs, especially since content companies are not required to honor a will.

Granting Access to Your Digital Fiduciary

To help you and your family make the most of your estate plan, Illinois has recently created an online tool that can provide your heirs with real-time information on your accounts. You simply input the login and password information that coincides with the accounts you want them to have access to and leave out the accounts that you wish to restrict them from seeing. Further, you can use your will to provide a clear outline of how and when the content should be used or accessed. Just remember to update the information contained within the tool each time you change a password or have a new account that you want your fiduciary to access.

Contact Our DuPage County Estate Planning Lawyers

Whether you need assistance setting up a trust, will, or digital fiduciary access, Stock, Carlson & Duff LLC is the firm to call. Dedicated and experienced, we can guide you through the estate planning process to ensure you have considered all your assets, including digital ones. Schedule your consultation with our >DuPage County estate planning lawyers by calling 630-665-2500 today.


New Illinois Bill Addresses Digital Assets in Estate Planning

Illinois bill addresses digital assets, digital assets, Illinois Estate Planning LawyerA new bill has been introduced to the Illinois General Assembly that addresses what should be done with personal online accounts when a person passes away.

A deceased person's social media accounts, such as Facebook, Twitter, email, as well as other online accounts, would all be considered physical assets and become part of a person's estate.

Senate Bill 1376 would allow the court to appoint a trustee who would then have access to the accounts in order to help settle a person's affairs. The bill currently has bipartisan support among Illinois lawmakers; however, there is opposition to the bill coming from tech companies who claim that the bill raises privacy issues.

Representatives from both Facebook and Yahoo have come out in opposition of the bill, saying it would actually ignore the wishes of a deceased person, as well as negate years of settled case law. The companies also claim that the bill would override options and tools they have developed and put in place to help ensure users accounts are protected.

Lawmakers who drafted the bill disagree. They say the bill is similar to current law regarding how physical assets are handled, whereby the court appoints someone to inventory and document a person's possessions, as well settle the person's estate. One lawmaker compared the online account issue as similar to a deceased person owning a safe deposit box located at a bank. The person appointed by the court is allowed to gain access to that box and make arrangements for that property.

Lawmakers also say that in today's digital world, with more and more people going "paperless," it is becoming increasingly difficult to settle a person's estate without having access to those online accounts when they have passed away without leaving instructions.

Two advocacy groups have expressed concern over the possibilities of unintended abuses of what the bill would allow. The Illinois Coalition Against Domestic Violence and The Trevor Project, an advocacy group for the lesbian, gay, bisexual and transgender community, are both working with lawmakers to help fine-tune the wording of the bill to ensure that the bill’s actual intentions are not abused.

Issues such as online accounts and digital assets can be addressed when a person draws up his or her estate plans. If you are considering drawing up a new estate plan, or would like to update the plans you currently have in place, please contact an experienced DuPage County estate planning attorney today to discuss your options and what will work best for you and your family.

What Happens to Your Digital Assets when You Die?

digital assets IMAGEWhen most people think of estate planning, they think of items such as bank accounts, stocks, bonds, real estate, furniture, jewelry, etc. But what happens to a person's virtual property – or digital assets – when they die? An article in the Huffington Post discusses digital assets and what people should consider when planning their estate.

There are many items that fall under a person's digital assets, including:

  • Emails;
  • Social network accounts like Facebook, Twitter and LinkedIn, as well as all the content posted on these sites;
  • Digital photos and videos;
  • Songs;
  • Ebooks;
  • PayPal account.

According to a survey conducted by McAfee, the average internet user has about $37,000 in digital assets. Most of those assets are contained in unprotected digital devices.

Currently, there really aren't any laws that govern what happens to digital assets when someone dies without a will that clearly outlines who should receive those assets. So it's important to make sure you leave clear instructions on who should own those assets.

Having a clause in your will that gives specific instructions to the executor of the will ensures that person will be able to access those accounts and handle them accordingly. Leave a list of each of your accounts/assets and their passwords, as well as clear instructions on who gets access.

Another option is a digital assets trust. There is a legal argument that says that user accounts for digital assets are licenses that are no longer valid once the user dies. This would mean that the permission you grant to access those accounts would not be valid. However, by creating a digital asset trust, the beneficiary can still legally access those accounts under trust law.

Another option is using an online service that allows you to store passwords and account information (all encrypted) and allows beneficiaries to retrieve the information upon your death.

Estate planning is too important to risk not having a qualified lawyer helping you ensure that your exact wishes will be carried out upon your death. Contact an experienced DuPage County estate planning attorney today.