Have you ever wondered what happens to your online data after you pass away? Maybe Facebook has reminded you of a passed loved one's birthday, or you find yourself wondering how to pass down your Google photo albums to your children. Michigan law now allows your estate plan to cover your online data. But if you haven't updated your will in a couple years, you and your loved ones may not know what you are missing.
In this blog post I will discuss the Fiduciary Access to Digital Assets Act, passed in 2016. I will explain why you may want to designate a digital asset manager to handle your online profiles after you pass away. Finally, I will describe what you need to do to make your estate plan cover your online data, photos, and profiles.
We live in a digitally connected world. Many social media users have friends and contacts online they have never met in person. Others have professional colleagues who only communicate occasionally through email. These connections may not be a person's closest friends, but they may want to know when an accident or final illness has left their contact unable to communicate.
However, email service providers and other holders of digital assets have often made it hard for families to spread the word about a loved one's final illness online. They have relied on their Terms of Service -- a contract between the now-incapacitated user and the company -- to refuse access to accounts in the interest of personal privacy.
Traditionally, after a loved one passed away, the family would be able to relive some of their favorite memories by going through the deceased's photo albums, letters, and other keepsakes. These materials helped families connect across the generations and brought people closer together through shared memories.
The power of photo albums hasn't changed, but over the years their form has. Increasingly, people are keeping their photos online -- either on social media or in cloud-based servers. After a person passes away, the Terms of Service to those online accounts could mean loved ones lose access to those images, and the memories that come with them.
In the face of these challenges, lawmakers across the country, and here in Michigan, have passed new laws to give personal representatives, conservators, and agents with powers of attorney access to an incapacitated or deceased person's digital assets. The first attempt was the Uniform Fiduciary Access to Digital Access Act (UFADAA), completed in 2014. It essentially treated digital assets the same as any other piece of personal property. Online photo files were the same as photo albums. Emails were treated like letters.
But the technology companies, and the American Civil Liberties Union, had a problem with that. They said giving an executor or trustee all the same rights and access to digital assets as the original user could cause privacy issues and interfere with the rights of third parties involved in that online content.
So in 2015, lawmakers created a Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) which gives the original user the ability to deny or limit access to specific content or accounts. Michigan's version of this law is the Fiduciary Access to Digital Assets Act, passed in 2016.
The Michigan law directs digital custodians (like Facebook, Twitter, Google, Apple, or Dropbox), to disclose a person's digital assets (or a catalog of assets) upon written request from the person's:
These authorized individuals (called fiduciaries) will have to provide proof of their authority. This may include a copy of the powers of attorney or trust certificate, a copy of user's death certificate, or a court order of appointment. If the digital custodian requests it, the fiduciaries may also need to specifically identify the accounts and connect the account to the specific user. In certain cases, the court may also need to determine that the request would not violate federal privacy laws.
Once the necessary information is provided, the digital custodian is generally required to give the fiduciary:
However, Michigan law does allow digital custodians to protect their users' privacy. If the online platform provides tools or settings that allow it, a user can designate whether, and to whom, the platform can disclose his or her content and digital assets. Those online designations will be honored, even if the person's will or other estate planning documents would indicate otherwise.
Michigan law may allow your personal representative or other fiduciary to access your digital assets, but that may not be the best person to go through all your digital assets. For example, would you want your mother reviewing all the digital photos you have stored on your phone? That's why an updated estate plan is so important. If your will or trust does not include a digital assets manager designation, your loved ones could be in for an unexpected surprise. Once you have made sure your estate plan covers your online data, you will need to follow up with your various digital accounts to make sure your online settings honor your final wishes.
Rebecca J. Braun, J.D., is an estate planning and elder law attorney for Mobile Legal Services, PLLC, in Southeast Michigan. She can help with estate planning and trust administration. She will travel to clients, free of charge, in Livingston, Oakland, Washtenaw, Wayne, and Southern Macomb Counties. Contact us for an initial assessment.