When we think about estate planning, we often think about traditional assets, like homes, bank accounts, retirement savings, and personal belongings. However, as technology continues to evolve there is an increasing portion of our lives that exists digitally.
Think about how many photographs are stored on your phone, how many important documents are saved electronically, or how many accounts you access using an email address and password. Have you ever considered what would happen to those digital assets after your death? Would your loved ones know where to find them or how to access them? These are questions worth considering as part of estate planning.
What Are Digital Assets?
Digital assets include a broad range of information and property stored electronically. Some examples include photographs and videos stored in cloud services, email accounts, social media profiles, online banking records, digital documents, and even cryptocurrency. While some digital assets have significant sentimental value some may provide financial value. For example, an email account may contain important correspondence, financial records, or information necessary to manage someone’s affairs. For business owners, digital assets may also include websites, electronic records, domain names, and online accounts used in daily operations. Identifying these assets is an important first step in ensuring they are properly addressed in an estate plan.
Apple’s Legacy Contact Feature
For individuals who use an iPhone, iPad, or other Apple products, Apple’s Legacy Contact feature can help preserve access to important information and memories. The Apple Legacy Contact feature allows users to designate an individual to access certain information associated with their Apple Account after their death.
A Legacy Contact may be able to access photographs, messages, notes, files, and certain other information stored through an Apple Account. However, the feature does not provide unrestricted access. Information such as passwords and payment details stored in iCloud Keychain, along with purchased media and subscriptions, is excluded. The access removes the activation lock and lasts for three years.
Setting up a Legacy Contact is relatively simple. On an iPhone, users can open Settings, select their name, navigate to the account security settings, and select Legacy Contact. From there, they can designate one or more trusted individuals.
When a Legacy Contact is added, Apple generates an access key that should be shared with the designated individual or kept with other important documents.The access key is a unique 32-character access key that also comes with a QR code. Following the account holder’s death, the Legacy Contact generally must request access to the account and provide both the access key and a death certificate. Depending on circumstances, a court order may be required. This feature provides a practical way to plan for access to digital information without sharing account passwords during one’s lifetime.
Google and Social Media Legacy Features
Google offers an Inactive Account Manager, allowing users to select trusted individuals who may receive certain account information after a designated time of inactivity (ranging from 3 months to 18 months). Users can determine which information they wish to share, such as Gmail or Google Drive data.
Facebook also offers a Legacy Contact feature. When an account is memorialized following the account holder’s death, a designated Legacy Contact may manage certain aspects of the profile, such as updating a profile photograph or sharing a memorial message. However, the Legacy Contact cannot log into the account or read private messages.
These tools differ in their capabilities and requirements, making it worthwhile to review the options available through the platforms you regularly use.
Minnesota Law and Digital Assets
If the previous features are not in place, Minnesota has also addressed digital assets through legislation. Minnesota Statutes Chapter 521A, known as the Revised Uniform Fiduciary Access to Digital Assets Act, which establishes a legal framework for certain individuals, such as personal representatives, trustees, and attorneys in fact, to obtain access to digital assets under specified circumstances.
For example, during a person’s lifetime, an agent may request certain digital assets and information about electronic communications under a power of attorney granting general authority or authority over digital assets. However, the power of attorney must expressly grant authority to access the contents of electronic communications, such as emails and messages. This authority ends upon the person’s death.
After death, a personal representative may generally request a “catalog of electronic communications” and other digital assets, but not the contents of those communications. To access the contents, the deceased must have consented, or a court must direct disclosure.
As a result, an individual’s authority to administer an estate does not necessarily mean that person can access every account or communication without additional authorization. Individuals who want their fiduciaries to have broader access should consider expressly authorizing the disclosure of digital assets, including the contents of electronic communications, in their estate planning documents.
Overall, estate planning involves more than determining who gets financial assets after death. It also involves preserving memories and making the administration of one’s affairs easier for loved ones. Therefore, digital assets should be taken into account in addition to traditional property as technology becomes more and more ingrained in our daily lives.
Haley Webb is an attorney with Fryberger, Buchanan, Smith & Frederick, P.A., practicing in the areas of Nonprofit and Tax-Exempt Entities, Real Estate and Estate Planning. This article is not intended to provide legal advice. You should always consult with an attorney about your specific circumstances.
