Hot Fun in the Summertime
By Bernard A. Krooks, Certified Elder Law Attorney
If you are as old as me, you may remember the hit song originally recorded by Sly and the Family Stone in 1969 titled “Hot Fun in the Summertime.” It has been said that the song was a dedication to the fun and games to be had during the summer. So, with summer quickly approaching, we thought we would suggest a summer project for you: getting your digital life in order. Sounds like fun, right?
You may ask yourself, what is my digital life and why do I need to get it in order? Whether you realize it or not, an increasingly large part of our everyday lives happens online. For example, most of us have smartphones and we use email, Facebook, Shutterfly, Instagram, apps, online bill paying, etc. All these things, and more, are part of our digital life. If we become incapacitated or die, someone else needs to step into our shoes to manage our digital life. However, this is easier said, than done.
Generally speaking, for estate planning purposes digital assets are just like other assets (stocks, bonds, real estate, etc.); however, they are also quite different. Of course, you have to decide who will have access to what and then have documents drafted that reflect your wishes. But there is more to it since there are special laws that apply to digital assets.
Most online providers have specific terms of service agreements (TOSA) that users agree to be bound by when using that particular digital platform. The TOSA is the fine print that we all agree to by clicking on a box before proceeding to the site. I wonder how many of us actually read the TOSA before agreeing to its terms. The rules generally protect the privacy of the user (you) and the provider and are not particularly helpful to whomever administers your affairs if you become incapacitated or after your death.
Many believe that their fiduciaries can simply use their passwords to log in to access accounts (assuming they have that information). But many TOSAs prohibit this, and anyone accessing the account without specific authority is likely violating the provider’s TOSA and could be breaking the law. What’s more, with increasingly common multi-factor authentication, attempts to gain access can inadvertently lock accounts. If that happens, you could have a real headache. There are many court cases pending where the decedent’s family and the online service provider are involved in lawsuits over what should happen to someone’s account after they die. You do not want to be the next case.
The law establishes default rules regarding who can access digital information. It requires a user to grant access (or not) explicitly. You can do this in two different ways:
1. Complete a provider’s online tool that names a designated recipient to access accounts. It is like a beneficiary designation, but it provides access, not ownership.
2. If you do not want to use the online tool or the provider does not offer one, then you can authorize access in your estate planning documents by including appropriate language that grants your fiduciary specific powers over digital assets.
If there is no explicit direction via one of these two methods, the provisions of the TOSA will apply. What does the TOSA say? Have you read it? Can you even find it? And if you do find it and discover that it allows your fiduciaries access, note that many providers can change the TOSA without notifying you. Thus, it is not recommended that you leave this to chance. You should consider:
When available, use the provider’s online tool to name those who should have access to your accounts.
Make sure your financial power of attorney, will, and trust (if you have one), include language regarding access to digital assets. If not, an update might be in order.
Consider creating an inventory of digital assets to assist your loved ones with managing your digital affairs. The inventory should be kept in a safe place but somewhere where your family will be able to find it if something happens to you.
Getting your digital life in order may not seem like hot fun in the summertime to you; however, if you do it then you will make things much easier for your loved ones if something happens to you.
Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP. He was named 2021 “Lawyer of the Year” by Best Lawyers in America® for excellence in Elder Law and has been honored as one of the “Best Lawyers” in America since 2008. He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils (NAEPC). Krooks is past Chair of the Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC). (914-684-2100) www.elderlawnewyork.com.