DIGITAL ESTATE PLANNING UPDATED

On January 29, 2013 I wrote a post entitled DIGITAL ESTATE PLANNING. See http://www.chicagotrademarkattorney.net/?s=digital+estate+planning

Call this post DIGITAL ESTATE PLANNING 2.0.

Since that date, effective August 12, 2016, the Illinois  Revised Uniform Fiduciary Access to Digital Assets Act came into being. See https://ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3728&ChapterID=60

That Act provides that an individual who has an account with a provider that stores or processes his electronic records may use an online tool to direct that provider to disclose to a designated recipient some or all of those records, including the content of electronic communications. If that individual has not used such an online tool, he may allow in a will, trust, power of attorney, or other record or the disclosure to a fiduciary of some or all of his electronic records, including the content of electronic communications sent or received by that individual.

Examples of such online tools include Facebook’s Legacy Contact which allows a third-party to view one’s posts, to share a final message on your behalf or provide information about a memorial service, respond to new friend requests, update your profile picture and cover photo, request the removal of your account and download a copy of what you shared on Facebook if the owner of that account had turned that feature on. However a Legacy Contact cannot log into your account, read your messages or remove any of your friends or make new friend requests. See https://www.facebook.com/help/1568013990080948

Starting June 1 Google will be deleting data from Drive, Docs, Sheets, Slides, Jamboard, Gmail, Photos, Drawings, Forms and Sites if your account has been inactive for two years. See https://tech.hindustantimes.com/tech/news/google-plans-to-delete-your-inactive-accounts-but-there-s-a-simple-solution-71608186815406.html

Note that a  fiduciary’s right to access this digital content may be modified by the provider’s terms of service if the user has not directed the provider to disclose his digital assets or provide for such a disclosure under a will or power of attorney to a fiduciary acting under such a document.

The provider may at its sole discretion: (1) grant a fiduciary or designated recipient full access to the user’s account, (2) grant a fiduciary or designated recipient partial access to the user’s account sufficient to perform the tasks with which the fiduciary or designated recipient is charged or (3) provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the provider received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account. In addition, the provider may assess a reasonable charge for the cost of disclosing digital assets under the Act.

To obtain this digital content, the deceased user must have given his or her consent or if a court directs disclosure of the contents of electronic communications of the user, the provider shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the representative gives the provider (1) a written request for disclosure in physical or electronic form, (2) a certified copy of the death certificate of the user, (3) a certified copy of the letter of appointment or a court order, (4) unless the user provided direction using an online tool, a copy of the user’s will, trust, power of attorney, or other record evidencing the user’s consent and, if requested by the provider the user’s user name or password or a finding by the court that the user consented to the disclosure of her electronic communications. 

Finally, a fiduciary acting within the scope of the fiduciary’s duties is considered an authorized user of the property of the decedent for the purpose of applicable computer-fraud and unauthorized-computer-access laws; also a provider shall comply with a request under this Act from a fiduciary or designated recipient to disclose digital assets or terminate an account no later than 60 days after a proper request.

To take advantage of these provisions, the person planning your estate should make reference to these digital assets or provide consent in a power of attorney, will or trust document to access these assets to the person who is to act on your behalf upon your death.

As I wrote previously, you don’t wan’t to put your passwords and user names in these documents as, at least your will becomes a matter of public record. When my Father passed last May he left me a three page list of passwords, most of which I would never use and the ones that I needed didn’t work.

Here, I would recommend a Password Manager, keep it current, and let the person who has your Power of Attorney have access to it.

Alternatively, if you use Google Chrome as your browser, it keeps a record of your user names and passwords. Let that person know how to access that record. Also, people back things up in the cloud; my Father used Carbonite for example. The person who will be responsible for your assets upon your incapacity or death should be able to access whoever your cloud storage provider is, whether it be Dropbox, iCloud, Google Drive, Microsoft 365, etc.

Also, note that many of these services auto-renew, as do domain names, and internet service provider contracts, so you need to determine which of these services the decedent is a subscriber to and cancel those services, or they will continue forever and bills for these will continue to show up.

In addition, after you as a fiduciary has accessed those records, the hard drives on any computing devices from which you retrieved this information need to be destroyed. For Windows see https://www.pcmag.com/how-to/how-to-wipe-your-hard-drive For an Intel-based Mac see https://support.apple.com/en-us/HT208496Note that new Macs use an Apple chip. 

To be completely safe, you can remove the hard drive and destroy it. See the following article from Family Handyman. https://www.familyhandyman.com/article/how-to-destroy-a-hard-drive/#:~:text=There%20are%20many%20more%20creative,will%20get%20the%20job%20done

A digital trail can be good and bad. As I noted previously, I really don’t want my survivors or anyone else to have access to my Google browser history, my Netflix viewing history, or my attorney-client communications.

When my Father passed, on the good side, he left a detailed record of all of his financial transactions for the past almost 20 years on Quicken files which I was able to access and digitized all of the 8 millimeter family home movies years before his death. On the bad side, he left us with an eight foot tall stack of slide carousels, undigitized.

My wife had the good sense of digitizing all of our photo albums and putting them in the “cloud” a few years ago. On the flip side, we still have 22 or so slide carousels waiting to be digitized. 

When I got my first digital camera, all of those images were automatically digitized and saved. However, that doesn’t include the data on my phones which need to be dealt with as well.

People’s whole lives exist in ones and zeroes and most people are not computer scientists.

The days of finding your family’s archives in a cardboard box in the attic, a safe deposit box or fireproof box are long gone.

They may be accessible at your fingers but your fingertip may not be the key that opens the digital lock that contains those records so unless you plan to cut off your dear old parent’s fingertip, you better find a way of accessing those records. 

About ERIC WACHSPRESS

The material on this website is for informational purposes only. It should not be considered legal advice and is not intended to create an attorney-client relationship. If you have questions regarding any material presented herein, we recommend that you consult an attorney. This web site and information presented herein were designed in accordance with Illinois law. Any content in conflict with the laws or ethical code of attorney conduct of any other jurisdiction is unintentional and void. I am a Chicago attorney practicing in the areas of trademark, copyright and information technology law as well as general corporate law. Formerly a trademark examining attorney with the United States Patent and Trademark Office, I have been in private practice since 1987 representing clients in a wide variety of industries, including the consumer products, financial services, information technology and entertainment industries. You can contact me at markscounsel@gmail.com, by phone at 773.934.5855 or by mail at 417 S. Jefferson St., #304, Chicago, IL 60607 USA
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