Less than a generation ago, when a person passed away, his or her important financial and personal information was typically found in one of a few places: a home or office desk drawer or safe, or a safe deposit box at the bank. Today, much of that essential information is digital. Without planning ahead for loved ones to have access, it may be a nightmare for them to try to manage your digital access after you die or become incapacitated. In addition to the stress this will add to their existing grief, inability to access your online and digital footprint can increase the cost of administering your estate—an avoidable and unnecessary waste of money.
Three Steps to Plan for Digital Assets
The first step to take is letting your loved ones know what digital footprint you have. It’s wise to create a list of your online accounts, including banking, investments, social media, and various digital logins. Identify the location of each item and any passwords or other information needed to access it. Specify what you want done with each account in the event you can no longer manage it yourself. Last but not least, keep the list updated and make sure the person you choose to manage them can access it.
The second thing you should do is back up locally any accounts that are managed exclusively through online accounts. For example, many people have hundreds of digital photos stored only with an online photo service such as Shutterfly or Snapfish. Imagine your family’s devastation if they couldn’t gain access to these irreplaceable treasures. Such data should be regularly backed up to a flash drive, CD, or your computer’s hard drive.
Backing up your data in this manner will circumvent issues with privacy rights created by the federal Stored Communications Act (also known as the Electronic Communications Privacy Act). Some online service providers prohibit users from allowing others to access their account; under some circumstances, a loved one could even be subject to criminal charges for using password information you provided or “exceeding authorized access.” Backing up to local storage media avoids such problems.
The third step to take is consulting with an experienced estate planning attorney. Your attorney will help you clarify your wishes regarding the disposition of your digital footprint, and can help you appoint a fiduciary to manage them in the event that you become incapacitated or die. Your estate plan may include durable powers of attorney, a will, and, if appropriate, a living trust. It’s important that any documents you execute with regard to your digital assets give clear authorization for your fiduciary to access your data in the event of your incapacity or death.
UFADAA and Colorado Law
In addition to being able to advise you on how the Stored Communications Act and other federal law may impact your situation, a local attorney can tell you how evolving Colorado law applies to your circumstances. The Uniform Fiduciary Access to Digital Assets Act (UFADAA) was approved by the Uniform Law Commission in 2014. The ULC is intended to provide states with non-partisan, well-drafted legislation they can adopt (and adapt) to bring clarity to important areas of state law. Colorado may adopt a version of UFADAA in the near future, so it’s important to have a knowledgeable estate planning attorney’s take on how this will impact you.
If you are like the many Colorado residents who have multiple accounts online but have not yet done any digital estate planning, contact the experienced estate planning and probate attorneys at Davis Schilken. Call us at 303-670-9855 to arrange a consultation at one of our two locations in The Denver Tech Center and Golden, Colorado. We look forward to working with you.