Estate Planning in a Digital Age

Ensure that the right representative has access and control over your digital assets.

by Tyler A. Eathington, Quinn, Johnston, Henderson, Pretorius & Cerulo

In August of 2016, Illinois enacted House Bill 4648, otherwise known as the Revised Uniform Fiduciary Access to Digital Assets Act. This Act is a helpful tool for individuals as it ensures that the right representative will have access and control over digital assets after one’s death.

The world continues to become increasingly more digital. Think about all the significant information and assets that are stored digitally, online or on a computer. Cryptocurrency, email, social media, photographs, account numbers and other documentation are just a few examples. This is information that your fiduciary, the legal representative after your death, will need to access. 

Prior to the Act, the fiduciary of a deceased individual would have had an extremely difficult time accessing the deceased’s digital assets or accounts. Even today, it can still be difficult if the deceased has not done the proper estate planning.

Previously, a fiduciary accessing online accounts of the decedent ran the risk of violating an internet provider’s terms of service. Those without usernames or passwords had to contact the provider directly, stating they were the fiduciary and would like access to the account. Then it was entirely up to the provider if the fiduciary was granted access. 

Now, with proper planning and documentation, individuals can disclose relevant information regarding digital assets in their estate plan. One option is to attach a list of digital assets (including usernames and passwords) to their will. Individuals can also specifically disclaim any digital assets or accounts they don’t want their fiduciary to have access to. Another option is to include a broad statement within the will giving the fiduciary power over all digital assets. In this case, the fiduciary would send the provider a death certificate and copy of the will to gain access to the digital assets. 

Finally, an individual may want another trusted individual to have access to their accounts while still living. In this case they can take advantage of a Power of Attorney for Property, which allows them to grant additional powers to a specific agent for control over property. A section of this form allows an individual to detail what additional assets they’d like their agent to have access to; digital assets can be included in this section.

If you haven’t revisited your estate plan in a long time or would like to add provisions granting powers over digital assets, you should speak to a qualified and experienced estate planning attorney. PM

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