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, some states may 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:

“Digital Assets.  To exercise all powers I may have over any digital device, digital asset, user account and electronically stored information, including any user account and digital asset that currently exists or may exist as technology develops, whether the same is in my own name or that I own or lawfully use jointly with any other individual; such powers include, but are not limited to, changing and circumventing my username and password to gain access to such user accounts and information; transferring or withdrawing funds or other digital assets among or from such user accounts; opening new user accounts in my name; 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 of mine to the fullest extent allowable under the federal Electronic Communications Privacy Act of 1986, 18 USC 2510 et seq., as amended from time to time, the Connecticut Revised Uniform Fiduciary Access to Digital Assets Act and any other federal, state or international privacy law or other law 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. To the extent a specific reference to any federal, state, local or international law is required in order to give effect to this provision, I specifically provide that my intention is to so reference such law, whether such law is now in existence or comes into existence or is amended after the date of this document.”

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?  By making sure your Will and Powers of Attorney includes provisions so that access to, and ownership of, your digital assets, your “electronic existence,” is passed on the way you wish.

Need help setting up your Will and Power of Attorney with these provisions? Contact us, we would be happy to help.

Related Posts:

What is a Power of Attorney and Who Should You Choose?
Can I Write My Own Will?
Do-it-yourself Wills: Don’t Risk It
Do You Have Proof? Why On-line Wills Can Cause Trouble

Members of:
Contact Information