In the current environment, more and more of our financial and even personal activities are carried on on-line, and more and more data about ourselves is located (sometimes exclusively) on-line. This can prove difficult when a person dies or becomes incapacitated. Activities as varied as the relatively unimportant maintenance (or shutting down) of a Facebook account, to accessing important e-mails, to shutting down an automatic payment plan, may be stymied by lack of a user name or a password, and from a legal perspective the necessary access may not be authorized. In some instances gaining unauthorized access is a federal crime.
Estate lawyers have recently turned their attention to solving these matters. The general advice is to (1) make a list of all your digital assets and keep it as a record where your executor or another trusted individual can find it (in other words act in a manner contrary to what all the digital security experts advise! ); (2) provide direction to your executor or agent as to how you want certain assets handled, if you have any specific wishes in this regard (if you have an on-line bank account it is pretty easy for your executor to know what to do with it, if you have a Facebook account or a website, it may not be so obvious); and (3) identify in your Power of Attorney and your Will that your agent and executor, respectively, have the authority to handle these assets (there is in fact standard language that can be used, and it includes an authorization that eliminates the worry regarding the federal crime mentioned above). It is worth noting however, that the Pennsylvania Senate has recently passed a fairly complex bill that would allow fiduciaries to access digital assets and passwords. If this bill eventually passes into law, it would presumably eliminate the need to take step “3”. Either way, you may have to ask yourself whether handling digital assets is a task within your fiduciary’s skill set. If not, it may be that you identify a technical advisor that your fiduciary will ultimately be able to rely on.
Frankly, we have not seen many problems with this aspect of decedent’s assets, however, it is likely only a matter of time and demographics until we do. — Rod Fluck