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.

Estate Planning 101: Power of Attorney and Living Will

living will power of attorney memphis estate planning lawyerA common question we receive from our estate planning clients is:  “What is the difference between a Health Care Power of Attorney and a Living Will?” Some people even incorrectly believe that a Living Will is the same thing as a Health Care Power of Attorney. While the two documents relate to your health care decisions, they are not the same. Both are important when planning for disability and death.

What is a Power of Attorney?

A Power of Attorney is a basic estate planning tool that is useful for ensuring that your financial and health care decisions can be made in the event of your incapacity.

Financial Power of Attorney

With a Financial Power of Attorney, you appoint an agent who is authorized to act on your behalf with regard to financial tasks and decisions (such as the payment of your bills and living expenses) in the event that you become unable to effectively manage your own property or financial affairs.  This authority may be granted at the time you execute the document or you can elect to make it effective only in the event of your incapacity.

Health Care Power of Attorney

With a Health Care Power of Attorney, you designate an Agent to make medical decisions for you if you cannot express your wishes or make the decisions yourself.  In addition, your Health Care Power of Attorney authorizes your Agent to obtain copies of your medical records

What is a Living Will?

In conjunction with your Health Care Power of Attorney, a Living Will serves to inform your doctors and your Agents that you do not want extraordinary medical measures taken, especially those that would cause you pain or discomfort, if those measures would only prolong the dying process.  Although the  Agent you named in your Health Care Power of Attorney will ultimately make this decision, your Living Will provides guidance to your named Agent concerning your wishes.  Any person can deliver your Living Will to your doctors if the Agent you named in your Health Care Power of Attorney is unavailable to make health care decisions for you.

What if I change my mind?

You can revoke (i.e., cancel) your Financial or Health Care Power of Attorney  and Living Will documents at any time while you have capacity.

Need help with a Power of Attorney or Living Will?

Fortunately, Tennessee law governs what type of language should be included in these documents. The language requirements provide uniformity so that financial institutions and hospitals are familiar with the documents and can act accordingly.

If you have additional questions about a power of attorney or living will, or if you are interested in developing an estate plan, please call us at 901-372-5003 or   email us here.    We are experienced estate planners and regularly practice in Probate Court.

We assist personal injury, estate planning, business litigation, and business organization clients in the greater Memphis and Nashville areas. Cities covered include Arlington, Bartlett, Collierville, Cordova, Eads, Germantown, Lakeland, Ashland City, Belmont, Hillsboro, Brentwood, Belle Meade, Forest Hills, Franklin, Greenhill, Hendersonville, Nolensville, Nolan’s Park, Oak Hill, and surrounding towns and cities.

Law FAQ: What is living probate?

If you can’t conduct business due to mental or physical incapacity (dementia, stroke, heart attack, etc.), only a court appointee can sign for you – even if you have a will.  Remember, a will only goes into effect after you die.  Once the court gets involved, it usually stays involved until you recover or die and it, not your family, will control how your assets are used to care for you.  This public, probate process can be expensive, embarrassing, time consuming and difficult to end.  It does not replace probate at death, so your family may have to go through probate court twice!

In some cases, a durable power of attorney may prevent the lifetime probate process.  A durable power of attorney lets you name someone to manage your financial affairs if you are unable to do so.  However, many financial institutions will not honor one unless it is on their form.  If accepted, it may work too well, giving someone a “blank check” to do whatever the agent wants with your assets.  It can be very effective when used with a living trust, but risky when used alone.

Please contact our office if you have questions about the living probate process or if you wnat more information on strategies to avoid the process.

Leaving a Legacy Greater Than Wealth: More than an Estate Plan

estate plan lawyer An estate plan isn’t all you need. While providing our children with a better life than we had may be a noble goal, the goal is often lost in translation because of the means we choose. As the saying in America goes, it is “shirt sleeves to shirt sleeves in three generations.”  In fact, studies show  that 60% of transferred or inherited wealth is lost by the end of the second generation, and 90% of family wealth is lost by the third generation.

Is money really the root of all evil?  Is giving our children a life of affluence replacing more traditional values such that our descendants cannot manage wealth?

Approaching an estate plan from strictly a tax, asset protection, or other objective standpoint may indeed add to the problem.  These issues certainly need to be addressed as part of any comprehensive estate plan, but perhaps the seeds of a legacy are planted during lifetime instead of at death and have little to do with a dollar figure.

Leaving a legacy may involve telling our children and grandchildren how the wealth was accumulated, the work ethic that helped us achieve what we have achieved, and the hard times we went through to get there.  It may involve teaching our children, even adult children, how to manage money, invest wisely, plan well, and save for retirement.  In that case, even if the money is gone or depleted, we have left a legacy far greater for our descendants because we have truly given them the tools to accumulate and maintain their own wealth.  Indeed, isn’t this giving them the better life we had envisioned for them?

We Can Design an Estate Plan Especially for You.

One of our primary goals in working with clients and prospective clients is helping them design an estate plan that fits in with their overall goals and values, rather than fitting their goals into a “cookie-cutter” estate plan. If we can help you, please call (901) 372-5003 or email us here.  Your initial consultation with us is always free of charge.