LawPulse

After a false start in 2015, the legislature delivered and the governor signed a bill this year that gives fiduciaries the power to access email, social media, and other digital assets of a decedent.

Last year, the Illinois General Assembly tabled SB 1376, sending it back to the Rules Committee - the usual death knell for pending legislation. The bill would have adopted a version of the Uniform Fiduciary Access to Digital Assets Act, which was first published by the Uniform Law Commission in 2014. (For more, See Proposed law would give fiduciaries easier access to decedents' Facebook, other accounts, June 2015 LawPulse.)

A revised version of the Act was proposed, passed by the General Assembly, and signed by the governor on August 12. It took effect immediately.

The Act is designed to solve an ever-growing problem - the ability of a fiduciary to access the digital assets of a decedent. Digital assets cover a broad range of resources, including email, social media accounts, documents stored in the cloud, and others.

As people increasingly organize their lives online, their families and heirs may need to access their online accounts for a sense of closure, to recover photographs, or to find information related to other assets belonging to the decedent. Access to an email account may reveal a bank account or retirement account for which no physical documents exist. As paperless statements become commonplace, this is becoming the new normal.

Addressing digital assets in estate planning

In light of the new Act, estate-planning attorneys should be prepared to develop some new best practices. Joel Schoenmeyer, Senior Legal Counsel for Northern Trust, says that estate-planners must come up with ways to insert fiduciary access to digital assets into every estate planning document, including wills, trusts, and powers of attorney.

He stresses the need to make the clauses "as comprehensive as possible." It all starts with having a conversation with your client to determine which digital assets they want included in their fiduciary's access. For example, some clients may not want their family to have access to their Facebook or email accounts. Others may want to specify the scope of a fiduciary's access, making it as expansive as possible.

The need for specificity is due to the Act's distinction between "content" and "catalog." Catalog is what many people would call metadata. The To/From and subject headers in an email would be "catalog." The actual body of the email is "content."

This distinction is necessary to ensure that the Act does not run afoul of the federal Electronic Communications Privacy Act, which protects information in the body of an electronic message that is not readily available to the public. The Uniform Law Commission's comments to its Act include this example: "X uses a Twitter account to send a message. If the tweet is sent only to other people who have been granted access to X's tweets, then it meets [the Act's] definition of "content of an electronic communication." But, if the tweet is completely public with no access restrictions, then it does not meet the [A]ct's definition…." See http://www.uniformlaws.org/shared/docs/Fiduciary%20Access%20to%20Digital%20Assets/2015_RUFADAA_Final%20Act_2016mar8.pdf, at p. 6.

Even catalog-only access is of great use to fiduciaries. Emails sent to or received from financial institutions may lead to undiscovered assets. Individuals that frequently communicated with the decedent can be identified and contacted.

According to Schoenmeyer, without the Act, accessing digital assets can be difficult. For example, using a decedent's login information for an email account may violate the provider's terms of service and possibly state and federal laws. If a fiduciary simply informs a provider that a person has died, the provider may close the account instead of granting access, he says.

Access to inactive accounts

Section 4 of the Act allows individuals to use online tools, which are established by providers, to direct the disclosure of digital assets. If an online tool is used, and it allows users to modify or delete a direction at all times, then those directions override contrary instructions in a written instrument. Schoenmeyer says that this was a provision that the providers fought for. Some providers already provide online tools, such as Google's Inactive Account Manager.

However, directions made via an online tool "lack the formality of a will," notes Schoenmeyer. For example, while a will is witnessed at execution, the same is not so for online tools. Those who do not use online tools may direct the disclosure of their digital assets via wills, trusts, powers of attorney, and other records.

To gain access to digital assets, fiduciaries must submit a written request to the provider. They must also provide a certified copy of the user's death certificate, a certified copy of a letter of appointment or court order, and a copy of the will, trust, or power of attorney granting the fiduciary access.

If a user has consented to the disclosure of content, then a provider may disclose the content. Providers may also request further documentation from fiduciaries, including a username or other subscriber identifier and evidence linking the account to the user, among other things.

To make fiduciary access easier, Schoenmeyer advises that individuals appoint a fiduciary with broad powers and provide a list of accounts, including passwords and user names. These lists should be updated from time-to-time. Given that many people don't use their real names to access online assets, these lists should help link the user to the username.

For a detailed treatment of the Act, watch for Chicago lawyer Mary Cascino's article in an upcoming issue of the Journal.