By Derek M. Johnson
With all the modern technological advances in society, many people are now going “digital.” That is, many people now: communicate through e-mail, have online financial accounts, receive electronic financial account statements (via e-mail), pay bills electronically, make online purchases, store files, photographs or videos electronically, have social media accounts (e.g. Facebook, Instagram, Pinterest and Snapchat), own electronic assets (e.g., website domain names, virtual currency such as bitcoin, and electronic designs that are subject to copyright, trademark, or patent laws), etc. (collectively, “digital assets”). While digital assets certainly make life more convenient for users, questions have arisen as to whether and how someone else can access a user’s digital assets when the user is incapacitated or deceased. These questions are important because the universe of digital assets is growing immensely, and some digital assets can be very valuable (e.g., a website domain name or electronic copyrighted or patented designs).
To help address these issues, a Power of Attorney for Property, Will and Trust can provide your loved ones with access to all of your digital assets in the event you become incapacitated or after you pass away. However, this does not guarantee access. For example, even if you grant a loved one access to your e-mails in your Power of Attorney for Property, Will and Trust, a loved one may still have to start probate court proceedings to gain access and, even then, there is no guarantee that your loved one will obtain full or partial access.
To overcome these hurdles, we recommend using “online tools” - to the extent they are available. An online tool is an electronic service provided by custodians of e-mails and digital assets that allows users like you to provide directions for the disclosure or nondisclosure of your e-mails and digital assets to your loved ones if you are incapacitated or after you pass away. Unfortunately, most custodians currently do not offer online tools. However, there are two notable exceptions: Google and Facebook.
• Google’s Inactive Account Manager. The Inactive Account Manager allows users with Google accounts (including Gmail) to designate specified persons to have access to the user’s e-mails and other digital assets held by Google if the user’s Google-related accounts have been inactive for a specified period of time (e.g., 3, 6, 12 or 18 months). For more information about Google’s Inactive Account Manager, please visit https://support.google.com/accounts/answer/3036546?hl=en.
• Facebook’s Legacy Contact. The Legacy Contact allows Facebook users to have their accounts “memorialized” (as opposed to deleted) after he or she passes away and to designate another person to manage the user’s memorialized account. However, the Legacy Contact does not allow the designated person to log into your account, remove or change past posts, photos or other things shared by you, remove your friends, or read any of your messages. For more information about Facebook’s Legacy Contact, please visit https://www.facebook.com/help/1568013990080948 and https://www.facebook.com/help/103897939701143?helpref=faq_content.
If providing access to your e-mail and other digital assets when you become incapacitated or after pass away is important to you, then we recommend that you use all available online tools.
To help address these issues, a Power of Attorney for Property, Will and Trust can provide your loved ones with access to all of your digital assets in the event you become incapacitated or after you pass away. However, this does not guarantee access. For example, even if you grant a loved one access to your e-mails in your Power of Attorney for Property, Will and Trust, a loved one may still have to start probate court proceedings to gain access and, even then, there is no guarantee that your loved one will obtain full or partial access.
To overcome these hurdles, we recommend using “online tools” - to the extent they are available. An online tool is an electronic service provided by custodians of e-mails and digital assets that allows users like you to provide directions for the disclosure or nondisclosure of your e-mails and digital assets to your loved ones if you are incapacitated or after you pass away. Unfortunately, most custodians currently do not offer online tools. However, there are two notable exceptions: Google and Facebook.
• Google’s Inactive Account Manager. The Inactive Account Manager allows users with Google accounts (including Gmail) to designate specified persons to have access to the user’s e-mails and other digital assets held by Google if the user’s Google-related accounts have been inactive for a specified period of time (e.g., 3, 6, 12 or 18 months). For more information about Google’s Inactive Account Manager, please visit https://support.google.com/accounts/answer/3036546?hl=en.
• Facebook’s Legacy Contact. The Legacy Contact allows Facebook users to have their accounts “memorialized” (as opposed to deleted) after he or she passes away and to designate another person to manage the user’s memorialized account. However, the Legacy Contact does not allow the designated person to log into your account, remove or change past posts, photos or other things shared by you, remove your friends, or read any of your messages. For more information about Facebook’s Legacy Contact, please visit https://www.facebook.com/help/1568013990080948 and https://www.facebook.com/help/103897939701143?helpref=faq_content.
If providing access to your e-mail and other digital assets when you become incapacitated or after pass away is important to you, then we recommend that you use all available online tools.
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