Does your Last Will and Testament include your on-line passwords?

Businesswoman holding tablet pcThere’s a big buzz lately about digital assets. What are they? Why do you need to be concerned about them anyway? Why on earth would you need to include them in your Will and in your power of attorney?

Well, take a step back and think about this.

We exist in the electronic world. Our photos, communications, personal information, and our “essence” are no longer in a scrap book, photo album, or collection of old letters stored in the attic. It’s now all stored on the web or in the “cloud.”

So here’s the question: When you die, who could access your on-line data, this treasure trove of family history and memories?

We need to now ensure that if we become disabled, and when we die, someone can access this data. Unfortunately,
most states do not yet have laws governing this area of the law. Many web hosts and software providers do not have consistent treatment on whether, when, or how to allow someone else to access your data.

That ubiquitous “Terms of Service” button that you click on that says “I agree” is not helpful in stating access rights, not that anyone ever reads the fine print anyway.

It is sort of like when the HIPPA rules were promulgated years ago—everyone was nervous about who could access your health care data. Everyone calmed down after a while and adjusted, but at least there were rules—national rules– about accessing health care data.

No set of rules exists for your electronic existence.

At a minimum, in your Last Will and Testament and in your Powers of Attorneys you should include provisions allowing your Executor and your Agent, respectively, to access all of your digital assets. You should also leave behind, somewhere where it can be found, a list of your user IDs and passwords.

As an example, here’s what we include in our Powers of Attorney, and a similar provision in Wills:

“to exercise all powers I may have over any computer, digital device, data storage device, user account, electronically stored information, and any domain name, whether the same are in my own name or that I own or lawfully use jointly with anyone; and to access, manage, control, delete and terminate any such asset or account, all as my Agent determines is necessary or advisable.  I hereby give my lawful consent and fully authorize my Agent to access, manage, control, delete and terminate any electronically stored information and communications to the fullest extent allowable under any state or federal privacy or other laws, and to take any actions I am authorized to take under all applicable Terms of Service, Terms of Use, licensing and other account agreements or laws.”

Connecticut, where we practice estate planning and elder law, is one of a few states that have tried to address this area, but the law only governs access to email accounts (See Connecticut General Statutes section 45a-334a).

So, until laws are enacted that are uniform and more broadly drafted to include more than just email, you have no choice but to take matters into your own hands.  How do you do this? Make sure your Connecticut estate planning lawyer includes provisions in your Will and Powers of Attorney so that access to, and ownership of, your digital assets, your “electronic existence,” is passed on the way you wish.

 

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