By DENNIS GRUBAUGH
Good ol’ Uncle Joe. He passed away and left you his fortune. Sadly, for you, all the details are stored in the cloud.
And you don’t have the password.
Smile you might at a supposed misfortune, but it can happen, and you also could be a victim without a little advance planning to ward off a new financial worry known as “online life after death.”
“For most people whose digital lifestyle doesn’t get much past Facebook, the online life concern doesn’t equate to much,” said Jennifer Davis, with the law firm of Greensfelder, Hemker & Gale, P.C. “Unfortunately when the experience does arise, it’s ended up being quite catastrophic for families.”
She adds: “We certainly encourage people to think about it. Our life is more and more present on line than ever.”
Internet use is no new phenomena but our ability to set up accounts of various sorts gets easier each day. If you die or become incapacitated, those accounts can live on — perhaps in the wrong hands. That includes your bank accounts, your social media sites, your blogs and billing venues of all sorts.
Davis, an officer in the Trust and Estates Practice Group at Greensfelder, has written and done work on the topic with the Missouri Bar Association.
Solutions can be costly when problems do arise. Davis cited the 2005 Ellsworth vs. Yahoo case, known as one of the more famous examples, in which a family was trying to create a scrapbook to honor their son, a deceased member of the military. All the email correspondence they sought was locked away online.
“When they tried to access those emails, they were unable to and eventually had to resort to a court proceeding to get that done,” Davis said. “They got access but it was not unfettered access.”
In another case, family members in California were trying to prove the nature of a loved one’s death in order to collect on insurance, but they were blocked in accessing certain accounts.
Access issues can also arise if an estate is trying to prove a case of medical malpractice and the medical files involved are protected digitally.
“Likewise, I can see it happening if someone is trying to set aside an estate plan on lack of capacity or undue influence. If the information to meet the elements of those claims is all contained in email or other digital assets, then the family would have a number of hurdles to get to that information,” Davis said.
A worst-case scenario is different from person to person and asset to asset.
“One of the most important things people have to remember about this area is there is no universal definition of ‘digital property.’ It is a wide group of assets, and it’s always changing because of the nature of technology. It includes things we can’t even think about,” she said.
Insurance, house and property information all have financial implications. But other property is valuable in other ways.
“It could be a loss of a journal or a family history. That’s mainly sentimental value but it’s extremely important to that family,” Davis said.
And for the business owner, or the family that’s trying to carry on when the business owner dies, much more is at stake.
“For a closely held business owner, it could be loss of access to customer lists or the ability to continue the business, which could be financially catastrophic,” she said.
Families also face the prospect of identity theft because of information left unprotected on the Internet.
Her advice to people while they are still alive is this:
- Handle your digital assets the same way you do an estate plan. The first step is to create an inventory of your digital assets — one not placed on a computer but printed out and kept in a safe place or with a trusted acquaintance. Describe the assets and include information to access them. Such things as user names, passwords, security questions and answers — anything you need to access those accounts while you’re alive will be useful to your heirs.
“Update that list frequently,” Davis said. “How you access those assets can change regularly. Once you have that, then store in a safe place — but that’s not necessarily the safe deposit box. Store it so that you can encourage it being updated.” Tucking it away too securely will make it harder for people to find it when you’re gone.
- Appoint a digital executor who can handle things when you’re gone. Many people simply use their existing executor and let them know where their digital information is stored. Other people give the online responsibility to someone in the family who is the most tech savvy.
“If you have significant assets, though, it’s important to specifically address those. Assets that might have value or that are critical to managing your affairs,” she said.
Address how to dispose of digital assets in the same way that you would more tangible things, she said.
Davis, whose specialty is estate planning, is admittedly not proficient on the technical side of computers. She became interested in the topic of online life after death when a colleague asked her to look into it after Missouri leaders began considering legislation on the subject. Illinois is doing the same thing, she said.
A subject that was no big deal just a few years ago has developed into one.
“More and more of our life is online and we in the estate planning world are seeing the ramifications of that shift in society. The cases we’re seeing are grabbing peoples’ attention. This happens at an emotionally devastating time for the family,” Davis said.
Even when assets are not necessarily large, the inconvenience factor still can be substantial. The inability to control an account means difficulty in stopping bills, finding out how much is owed on a bill, or even knowing that a bill exists.
Younger people are more likely to have a greater degree of information floating around cyberspace, but they’ve also grown up with technology and are more often familiar with ways to protect their accounts.
Baby boomers, on the other hand, have been forced to use digital technology, often fighting the process.
“It’s not their comfort zone like the younger generation, so I can see it being even more catastrophic for them,” Davis said. “They’ve not prepared the way a younger person would have.”
Questions also exist on the social media side, where Facebook, Twitter, LinkedIn and more are so popular. Many people die and no one thinks to close those accounts. Or they purposely leave them open as a type of memorial.
“I think it’s a personal preference,” Davis said. “But that being said, I think it’s important, where possible, that personal data be removed. A growing area in identity theft is for people to take the information from the Internet of people who have passed away or have become incapacitated.”
A handful of states have passed laws to establish a fiduciary who would have the ability to access, manage and control digital assets. Importantly, the legislation is not altering how assets would be distributed.
In Illinois, Senate Bill 1376 was introduced in February 2015 in the Senate and referred to a committee, where it has remained since May 2015.
There are two federal statutes that providers are sensitive to, but the issue of granting a fiduciary access is so far only being discussed on the state levels, she said.