By Tim Kirk, Heyl, Royster, Voelker & Allen
Some of our clients are concerned about what happens to their digital assets such as social media pages, online pictures, and music files after they die. Also, many of our clients use the Internet to pay bills online. There are passwords and security questions that are necessary for someone to access those digital assets and online accounts. What happens to those digital assets and online accounts following your death?
Digital Assets and online accounts are governed by various federal laws such as the Computer Fraud and Abuse Act, the Stored Communications Act, and the Electronic Communications Privacy Act. Some states have passed laws that allow the appointment of someone to access and retrieve digital assets after death. Illinois has adopted the Revised Uniform Fiduciary Access to Digital Assets Act (“Uniform Act”). The Uniform Act allows fiduciaries, such as executors and guardians, the authority to manage digital assets such as computer files and web domains, but would limit their access to electronic communications such as e-mail, text messages, and social media accounts unless the original user authorized them to do so.
If your digital assets are important to you, then it would be appropriate to specifically mention the disposition of those assets in your Last Will & Testament and to give your executor the express authority to access and retrieve your digital assets by including that authority in your Last Will & Testament. We suggest including the following authority in your Last Will & Testament if you have digital assets that are important to you: “I give my executor the authority to access, manage and retrieve any and all digital assets and online accounts owned or controlled by me at the time of my death including, but not limited to, computer files, web domains, e-mail, text messages, and social media accounts.”
Many social media and online companies also have their own rules, or terms of service, that will determine the rights to your digital assets and online accounts following your death. Some terms of services simply provide that your digital account terminates upon your death. Some social media companies will allow an authorized person to establish a memorialized account as a place for friends and family to gather and share memories after a person has passed away. Still, other social media companies are willing to provide access to content and will distribute that content to an authorized person. At issue for most social media companies are the privacy rights of the deceased account owner. Many social media companies are willing to go to great lengths and to great expense to protect those privacy rights to the dismay of the deceased person’s family and loved ones.
As with all important assets, we encourage our clients to keep an inventory sheet of their digital assets, online accounts, passwords, and security question answers. You should let responsible family members or your executor know the location of the inventory. If appropriate, you can place the inventory in your bank safety deposit box or leave a copy with your lawyer for safekeeping.
If digital assets are not the subject of a specific bequest in your Last Will & Testament, then I believe that Illinois courts would likely treat your digital assets as part of the residue of your estate. As such, any disposition of your assets as part of the rest, residue, and remainder of your estate would likely include your digital assets.
In our practice we find that accessing online accounts with financial institutions is relatively easy following a death. Financial institutions will provide information and access to online accounts to a surviving joint tenant or to a court-appointed executor. Our experience is that the surviving joint tenant or court-appointed executor can quickly access the account at the financial institution and reset online access and passwords.
We encourage you to be careful and consult with your attorney prior to attempting to access or retrieve digital assets or online accounts after the death of the account owner so that you don’t run afoul of federal and state laws.
For more information, you may reach Tim at Heyl Royster, 300 Hamilton Boulevard in Peoria, or call 309-676-0400.
