Tips for Managing Digital Assets of a Deceased or Disabled Person

Transcript

My name is Karin Prangley, and I’m an ACTEC Fellow from Chicago, Illinois. I’m here with ACTEC Fellow Suzy Walsh from Hartford, Connecticut. And we’re here to give you some tips on how to administer the digital assets of a deceased or disabled person. First, Suzy, tell us why this is such an important topic.

Accessing Digital Assets of a Deceased or Disabled Person

Why is it really essential to get access to the digital assets of a deceased or disabled person?

Suzy Walsh:  Thanks, Karin. So, you know, sometimes clients don’t understand why this is so important. And so, I usually explain to them that it’s because we live our lives on computers and online and storing assets digitally. And, generally, when I give that explanation, they still look at me as if they were unconvinced. So, I ask them the following question. I say, “Okay, if we needed to plan your funeral tomorrow, how would we do that?” And then the light bulb goes on, and they say, “All my photos are on my phone or on my computer. Now, I understand.”

And then we have a conversation about how they use their computer. Do they use email to access bills? Do they have important documents saved on their computer and so forth? And we talk through why it’s important for someone who’s managing their affairs if they have a stroke, if they don’t understand, or they can’t communicate, and then for the collection of their assets after they die. And that’s really why it’s so important.

And, Karin, having said all that, what sorts of digital assets does a fiduciary have to look for and how can they search for them?

Where to Look for Digital Assets of a Deceased Person

Karin Prangley:  Well, I like to remind people that in the days before the Internet was so prevalent and when I first started practicing law around 20 years ago and somebody became disabled or died, we would get our checklist of how to administer the estate or trust by looking in the mailbox, by opening the deceased or disabled person’s mail and seeing what bills came in, what accounts had to be turned off, what life insurance they had. Well, where is that mailbox today? It’s all online. And so, I’d say, to do a really thorough job of marshaling and looking for digital assets that are going to be essential in administering an estate or the property of a disabled person, you’re going to want to get access to those emails.

You’re going to want to see, for example, what welcome messages when you sign up for a social media account, anything like that online they’ll send you a welcome message or instructions about your username, etc. And so, by having access to the email account or better said a copy of the emails of the deceased or disabled person, you can do a good job of beginning to unlock their digital assets both important and those that just need to be turned off or something like that. But, hey, maybe easier said than done.

How, Suzy, do you get access to that email account?

How to Access a Deceased Person’s Email Account

Suzy Walsh:  Well, that’s, of course, the most important question, and it’s one we talk to clients about frequently. So, the easy way is when a client who’s died or become incapable has planned for fiduciary access. They realize this is going to happen. They understand how they use their computer in the accounts, and they’ve told the companies who run those accounts how to address the situation. So, a couple of companies, Google, Apple, and Facebook allow us to designate a person after a period of inactivity to access the account.

And, if we’ve done that planning – in Google, it’s via inactive account manager, and Apple has a new procedure (Digital Legacy Contact), and they have a nice instruction sheet that you can hand out to clients. (to set up a Facebook legacy contact, go to Settings & Privacy → Settings → General → Memorialization Settings) And so, if we’ve done that work, then there doesn’t need to be a court involved or a court proceeding. If the fiduciary’s designated, they can contact the company and say, “Hey, Suzy told me she wanted me to have access to the accounts.” And that’s all well and fine. But as we know, a lot of people don’t plan ahead. And so, a court typically needs to be involved using a statute called, cleverly, Fiduciary Access to Digital Assets Act (aka Revised Uniform Fiduciary Access to Digital Assets Act or RUFADAA).

And that takes a bit of work. It involves an application to a court and a probate proceeding, and it’s all a bit of a nuisance. But eventually, the fiduciary should be able to access most, if not all of the data in the account.

And, finally, we have those tricky situations where a court doesn’t get involved because the fiduciary has in their possession the laptop, the hard drive, or wherever the data’s stored. But when they open it and to access it, they discover that the data’s encrypted. And that requires the use of a forensic expert to search for files to help engage and access the accounts, and sometimes that’s not possible.

We’ve all heard of the folks with the lost Bitcoin, for example.

And, Karin, I know you mentioned you’ve had some interactions with forensics experts, and I’d love to hear about that, as well as what kind of timing the fiduciary can expect when they set about gaining access to the assets.

Using Forensic Experts to Unlock Deceased or Disabled Person’s Drives

Karin Prangley: Yeah. First point, we have had luck unlocking important items on deceased or disabled person’s hard drives using a forensic computing expert. But unless you’re a 100% sure, which you can’t be a 100% sure of anything in life, that the deceased or disabled person has no litigation, court proceedings, or nothing sensitive going on, I highly recommend that you encourage the computer forensic expert to make a copy of the hard drive before they begin. Some, especially heavily encrypted or sensitive information could be deleted even if it’s attempted to be unencrypted, so you wouldn’t want to destroy any evidence in a lawsuit or simply damage files that you’re later going to access.

So, that’s just a gatekeeping point before you begin with your computer forensic expert.

As far as timing, a saying that I tell my children all the time comes to mind here, which is “pack your patience.” Suzy described the process for getting access to the digital assets of a deceased or disabled person. As you can imagine, that court proceeding if you have to do it takes time. And, once you have all your paperwork, the court order, the estate planning documents that say that the deceased or disabled person wanted their executor and trustees to access the digital assets, the email accounts, etc., get that paperwork into the digital asset provider quickly.

Unlike a bank, for example, that has had users pass away since banks began and the bank account can be – there’s a very well-established process for transitioning the account, the bank account of a disabled person, and there’s a whole cadre of employees at the bank that take care of that, technology companies and digital asset providers don’t yet have those robust processes in place, so be patient. Get the paperwork in quickly and follow up because it could be several months before access is granted. That’s even after the probate court proceeding that Suzy talked about.

Also, if an inactive account feature is set up, that also may take a while. For example, I have Google inactive account manager set up. And I have my settings set that after six months of inactivity my contents are released to my licensed fiduciaries. Well, that’s so that if I’m on vacation for just three-four weeks or just don’t feel like checking my account for a while and taking a digital holiday, all my stuff isn’t accidentally released to my executors and trustees. So, that may take a while too, so plan for this. Early on in the estate administration and trust administration process, begin to think of the digital assets and begin the processes to get that all-important access.

Suzy:  Well, thank you, Karin. This is so interesting and thank you all for listening. We appreciate it.