Technology has obliterated Estate Planning of years past. Gone are the days of the stodgy attorney sitting in a smoke-filled room discussing arcane provisions of the Internal Revenue Code. Modern Estate Planning consists of Zoom meetings discussing cutting-edge techniques. As this article will demonstrate, technology has changed the way that we think about and approach Estate Planning. Digital assets and emerging technology require Estate Planning attorneys to change their practices. Electronic Wills have gained acceptance in certain jurisdictions, many individuals own cryptocurrency, non-fungible tokens have emerged as individuals consider their digital identity, and smartphones replaced flip phones long ago. To great fanfare in mid-December Apple released iOS 15.2 introducing the concept of the “Legacy Contact” setting. Okay, perhaps it wasn’t to great fanfare, but it certainly garnered attention in the Estate Planning world. The technology giant finally joined Google and Meta (formerly known as Facebook) in providing a way for designated parties to access the digital content of an account holder after death. Many expressed surprise that Apple took so long to release such a necessary tool.
For those who are unfamiliar with the concept of a Legacy Contact, anyone who has a Facebook account, Google account, or an iPhone can select one or more individuals (Apple allows up to five, although Google allows up to ten) to access those accounts and the digital content therein after death. Without this access, the loved ones left behind would lose the treasure trove of information contained in these accounts. While most of this information lacks monetary value, it’s priceless when considering sentimental value. Each organization has enacted different protocols regarding how much control the owner has over what gets shared after death. For example, Apple takes an “all or nothing approach” essentially allowing the Legacy Contact to access everything including messages, files, and photographs if they have the access key. Google, however, employs a more selective approach and provides options that allow the owner to tailor what gets shared after a period of inactivity, even going so far as to allow a complete wipe of the account after a certain amount of time.
Although many states have adopted some form of the Revised Fiduciary Access to Digital Assets Act (the “Act”) which gives a fiduciary access to these accounts, the Act does not apply to social media sites. To address the proliferation of these accounts, many Estate Planning attorneys began including language in their Wills and Trusts specifying that the named fiduciaries would have access to all digital assets intending that those provisions would provide the fiduciary with the required powers to dispose of the content. That did not always work. Sometimes, even with appropriately inclusive language, organizations required the fiduciary to produce a court order to access the account. Obviously, this practice caused frustration because obtaining a court order isn’t always an easy or inexpensive task. Thus, the best practice requires a proactive approach by the accountholder. The accountholder should review the policy settings for all digital assets, both monetary and sentimental, and take appropriate steps to ensure access, if desired, after death.
Most digital accounts allow set up of the Legacy Contact under “Account Information,” “Settings,” or “Inactive Account.” As with the individuals named in your Estate Planning documents, it’s important to consider who should be named, in what capacity, and how much access you want to give that person if you have the option to limit access. Remember that not every digital platform allows you to choose what information gets shared so it’s important to review the policies and procedures for all your digital platforms and remember that the individual selected may still need to provide requested documentation or proof of their own identity. Of course, you can always provide access during life, but that creates a different issue of shared access while you are alive and actively using the account.
It’s hard to accept our own mortality; however, our digital identities give us the opportunity to continue our legacy beyond our years on earth. Even though technology moves fast enough to make your head spin, it’s vital to review the settings for your own digital assets and discuss your concerns with me.