Do you use e-mail? Are you on Facebook or Instagram? Do you store photos in the cloud? Do you have online banking, stock trading, or credit card accounts? Do you have a Netflix or iTunes account? If the answer to any of these questions is “Yes”, then you have digital assets. These digital assets can be accessed on your home or work computer, laptop, smartphone, iPad, tablet, and other devices.
What do all of these digital assets have in common? For each of them, you created a username and password, and you had to agree to the custodian’s terms of usage, when you opened the account. If you are like most of us, you probably cannot remember all of your usernames and passwords, which we are told to change periodically to prevent identity theft. You also probably checked the box that said you agreed to the terms of usage, without actually reading the entire agreement.
So what’s the problem? Have you thought about what will happen if you (the “user”) become disabled and can no longer manage these digital assets yourself? Or what happens after your death—how will your Facebook and e-mail accounts be closed, and what will happen to all of those treasured family photos if nobody can get to them? Who will be able to close your Netflix account to stop that automatic monthly charge?
Up until now, the answers have not been clear. In August of this year, Illinois took a big step toward delineating exactly who has the legal right to access the digital assets of another, to what extent, and under what circumstances, when it enacted the Revised Uniform Fiduciary Access to Digital Assets Act (the “Act”). The Act applies to fiduciaries of Illinois users if such fiduciaries are named in one of the following: (1) in a Will (an Executor); (2) in a Power of Attorney (an Agent or Attorney-in-Fact); (3) in a Trust (a Trustee); (4) by a court for a decedent who did not have a Will (an Administrator); and (5) by a court for a disabled adult (a Guardian).
The Act introduces the concept of an “online tool”, which it defines as “an electronic service provided by a custodian that allows a user in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to third persons.” According to the Act, if a user has an online tool in place, and also has directions in his Will, Trust and/or Property Power of Attorney, directing the disclosure or nondisclosure of some or all of his digital assets, the terms of the online tool will govern if there is a conflict. If, however, a user has not provided any directions in either an online tool or in the user’s estate planning documents, then the terms-of-service agreement will govern these matters. Therefore, it is important that you, as a user of digital assets, take steps to provide consistent directions regarding the access to your digital assets, whether you do it through an online tool, through your estate planning documents, or both.
The estate planning attorneys at Waltz, Palmer & Dawson, LLC will discuss your concerns with you so that you can include appropriate language in your Will, Trust, and Power of Attorney for Property that will reflect your wishes as to the disclosure or nondisclosure of your digital assets in the event of your disability or death. Call our office at (847) 253-8800 to schedule a no-charge initial consultation to begin, or update, your estate plan.
Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Business Immigration, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.
This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.