Nicole Petrow, MJLST Staffer
As our society becomes increasingly tied to digital technologies, the world of estate planning is faced with novel questions. Today, many people own significant digital assets, including anything from electronically stored photos and videos to valuable domain names and cryptocurrency. The field of estate planning is evolving with law of digital property as well as the digitization of the will drafting process.
How is estate planning complicated by advancing technologies?
After death, accessing a loved one’s digital presence can be a significant way by which grieving loved ones preserve cherished memories. There are over 2.5 quintillion bytes of data created each day, many of these through communication platforms, social media, online storage, and other digital mediums. However, passwords, data encryption, criminal laws, and data privacy laws complicate how to plan for the eventuality of passing these assets.
Social media presents interesting challenges for proper planning, because simply sharing account passwords may not always be proper. Using another person’s password to access an account, even if freely given, is potentially punishable under the federal Computer Fraud and Abuse Act as it may violate the account’s Terms of Service agreement by “exceeding authorized access.” Platforms have various methods of handling the deaths of users: Facebook and Instagram have options to “memorialize” accounts after death, while other platforms such as Twitter and LinkedIn allow account deactivation.
Data privacy laws add an additional wrinkle in accessing a loved one’s online accounts after death. Until recently, the privacy protections ensured by the Stored Communications Act prevented a duly appointed fiduciary from accessing the contents of a deceased user’s online account. In response to this problem, the Uniform Law Commission promulgated the Revised Uniform Fiduciary Access to Digital Assets Law (RUFADAA), which has been adopted in 44 jurisdictions. The RUFADAA is significant for many reasons, particularly because it formally recognizes digital property as a property right that can be managed and accessed by third parties after death.
Proper planning is also essential for anyone with digital assets of significant financial value. Problems arise when owners of domain names or cryptocurrency die without having identified their assets, or planned for their transfer.
Why should I care?
For the average Millennial and Gen Zer, death planning may feel like a morbid project, better suited for the wealthy and elderly. A 2019 survey shows that only 1 in 5 of 18-34 year olds have an estate plan in place. However, there are many reasons to prepare an estate plan regardless of wealth, age, or family status.
Primarily, estate planning allows a person to direct what happens to their money and property after their death. But this is not the entire equation. Estate plans allow you to:
- Outline and identify your online assets. Proper planning ensures that your loved ones will be able to identify, access, and preserve any online presence you may have. This includes social media accounts, personal blogs, and anything of financial value. If no one knows of your online presence, it may be lost after death.
- Plan for the transfer of your debts. Depending on the type of loan you have, your debt may not die with you. Certain private loans will transfer to your co-signer in the event of your death.
- Outline your desired end of life care. Drafting Health Care Directives and Powers of Attorney allow you to express your desired medical treatment in the event of your incapacitation.
- Make things easier on your loved ones. Clearly expressing your desires for your end of life care, as well as outlining your intended asset distribution, will help your grieving loved ones make big decisions without the stress of wondering “what you would have wanted.”
- Avoid unwanted “intestate” succession. If you die without a will, your state’s intestate succession laws will determine who receives and controls your assets. These may not reflect your desires – drafting a simple will can avoid this issue.
- Arrange the guardianship of any minor children. Planning for this potential is essential for any parent, particularly if your state’s intestate succession statute does not reflect your desires for your children.
What about the will drafting process itself?
Technological advancements are changing the ways estate planning documents themselves are being drafted and admitted to probate courts around the world. Modern cases are asking new questions of previously settled law: is a will written on the iPhone Notes app sufficient? In Microsoft Word? What about a will hand-written by stylus on a tablet?
In response to questions such as these, the Uniform Law Commission drafted the Uniform Electronic Wills Act to accommodate electronic aspects of will executing. This act primarily encourages the validity of electronically signed and cloud-stored wills. Some commentators suggest that these electronic wills are likely to work best for young people with fewer assets and simple succession plans.
The law of wills and trusts is likely to continue evolving rapidly in order to keep pace with technological development. To preserve any Instagram masterpieces or bitcoin troves for those that will appreciate them in the future it is important to stay informed of the status of the law and have a plan in place. If this is your first time thinking about an estate plan, take stock of your assets, your family situation, and your state’s intestacy laws, and consider contacting a professional to plan for the future.