Digital Assets: Who can access my online accounts if I die?

digital assets estate planning lawyerChances are, if you are reading this Blog Post, you own Digital Assets and have one or more online accounts.  As Estate Planning Lawyers, we continue to see changes in the law to address our increasingly tech-savvy culture. The use of electronic information has continued to play a larger role in the Estate Planning and Administration we do for our clients.

Have you ever thought about what might happen to your Facebook account if you died?  Who would get your iTunes library and how would they access it?

Tennessee Legislature Passes Revised Uniform Fiduciary Access to Digital Assets Act

The Tennessee legislature recently passed the Revised Uniform Fiduciary Access to Digital Assets Act (the “Act”), which became effective July 1, 2016. The intent of the Act is to aid in a Fiduciary’s ability to access an individual’s Digital Assets.  A Fiduciary is someone either appointed by a person or a Probate Court Court to act on behalf of the person in the event of incapacity or death.  A fiduciary may be appointed by a person in a Power of Attorney or Last Will and Testament, or by a Court in a guardianship, conservatorship, or intestate estate proceeding.  The Act also attempts to protect a person’s privacy, as it also allows the person to restrict a fiduciary’s access to digital assets, and provides additional safeguards by allowing the Custodian of the asset to request certain documentation before providing requested information. A fiduciary granted access to digital assets is held to a fiduciary standard under the Act, requiring the fiduciary to act in the best interests of the person with a duty of care, loyalty and confidentiality.

What are Digital Assets?

The Act defines Digital Assets as “an electronic record in which an individual has a right or interest,” and this “does not include an underlying asset or liability unless the asset or liability is itself an electronic record.”  The Act does not necessarily grant the fiduciary access to a person’s cell phone, computer, tablet, etc., but this class of assets includes a wide variety of items, including:

  • assets from Twitter and Facebook accounts
  • assets such as PayPal accounts
  • iTunes accounts
  • Accumulated frequent flyer miles
  • Online banking or trading accounts.

How is Access Granted?

The Act lays out specific requirements as to how the fiduciary must go about requesting access to the digital assets depending on the nature of the fiduciary representation, the type of document (if any) granting the fiduciary the authority to access digital assets, and the depth of the information needed by the fiduciary.

What Should I do about my digital assets and online accounts?

Granting a fiduciary the authority to access your digital assets (or limiting their access) should be done with specificity.   You can and should address these issues in your Last Will and Testament and Power of Attorney.  You should also make sure that any usernames, passwords, and account numbers for your digital assets and online accounts are in a safe place so that your fiduciary can get this information and provide it if requested by a custodian (such as the bank, Facebook, etc.).

If you are concerned about your appointed fiduciary’s current potential access to your digital assets, you should consult with an attorney experienced in fiduciary matters, who can review the relevant documents and properly advise you about your specific situation.

What if I need access to someone else’s online accounts?

If you are currently in a fiduciary position and you need to obtain access to that person’s digital assets or records or online accounts, please be sure to consult with an estate planning attorney to find out how you should go about obtaining this information/access, because the procedures can differ based on your fiduciary role, the powers you have been granted, and the type of information you are trying to obtain.

Let us help you

Our Estate Planning Attorneys can help develop a digital assets plan to best suit your individual needs.  Visit our website to learn more about our work and call us today at 901-372-5003.

Capacity to Make a Will in Tennessee

capacity to make will, TN estate planning lawyer

Capacity to Make a Will in Tennessee

As an estate planning and probate lawyer, I’ve handled cases from time to time where a person’s capacity at the time he or she created a Will or Trust was an issue. The elderly have increasingly become targets for those looking to prey on their physical and/or mental weaknesses. Additionally, people are living longer, and Alzheimer’s and dementia are becoming more and more common. Given all these factors, it is likely to continue to be an issue, especially when a person of advanced age changes or attempts to change beneficiaries.

What is a Self-Proving Will?

In most cases, a Will prepared by a lawyer includes the statements of 2 witnesses and a notary so that the Will is what is referred to as “self-proving.”  If the Will is not self-proving, it must be “proven” after the person dies.  In any case where there are handwritten notations or the document is totally handwritten, capacity of the person making the Will must be established.

Standard for Testamentary Capacity to Execute a Will in Tennessee

The general standard in Tennessee for capacity to execute a Will or a Trust is that the Testator (i.e., the person leaving the Will) be “of sound mind and disposing memory.” A person who does not have the capacity to conduct general business transactions or to enter into a contract can still have the required testamentary capacity to execute a Will or Trust. Two key factors in determining whether this standard is met are that the person must understand (1) the nature and effect of the act, and (2) the extent of the property the person is seeking to dispose of.

Whether a person is “of sound mind and disposing memory” is easy to determine when he or she is at one end of the spectrum or the other. Unfortunately, capacity is often not an all-or-nothing deal but falls somewhere in between the two.  When a person whose capacity is questionable tries to make notes or create or modify a Will or Trust, it can be very hard to determine after the fact. Obviously, the opinion of the person’s physician is always preferable and can often help prevent questions later.

Without capacity to make or modify a Will, the person’s intent may not be able to be carried out, even if there is no question as to what he or she wanted or was attempting to accomplish.

Your Legacy is Too Important to Leave to Chance.

Proper execution of  testamentary documents (i.e., Will, Trust, etc.) can avoid confusion later after you die, which is why it is important to consult an attorney when planning for your beneficiaries. The goal of testamentary documents is to accomplish your goals and objectives. What a shame if your intentions are not fulfilled due to a legal technicality or because a document was not executed properly.

If you would like to learn more about planning for your estate, please call us at 901-372-5003 or visit the Estate Planning page on our website.