-by Kurt Rifbjerg, Esq.
The global onset of COVID-19 may impact a person’s ability to execute a formal, comprehensive estate plan.
While our firm remains open and willing to help clients create and revise their estate plans as a legal necessity during these troubling times, we recognize that not everyone may be able to avail themselves of legal services.
A very simple, practical, and prudent step then to help your loved ones authorized to take care of your affairs in the event of your death or incapacity, is to assemble a list of the usernames and passwords of your online financial and personal accounts. As our everyday lives increasingly revolve around email and internet transactions, easy access to these accounts greatly simplifies their job. This is good advice even if you have a comprehensive estate plan in place.
This article does not assert that a simple list of this information is a recommended substitute for a properly drafted power of attorney, will, and trust. Rather, the difficulty lies in merely obtaining access to these accounts to manage a person’s digital assets or other online material. Instructions on what to do with these accounts should also be made.
A list is helpful for accounts which encompass financial assets (Bitcoin, online only banks such as Ally, CIT Bank, Chime, etc.). Without login information, a fiduciary may need to wait for court orders and letters of administration in a formal probate to demonstrate their authority to access the accounts.
You certainly want to leave the list for only those authorized to access these accounts. Doing so will allow easier access to these accounts during a time when many California Counties have limited or altogether closed their Superior Courts in response to efforts to curb the spread of COVID-19.
The recent Revised Fiduciary Access to Digital Assets Act (California Probate Code § 870) which went into effect on January 1, 2017, does not guarantee a fiduciary’s unfettered access to online accounts.
Many people believe that their fiduciary (agent under a power of attorney, executor under a will, or trustee under a trust) will automatically be able to obtain access to their online accounts. This is not necessarily the case as to all accounts, especially Facebook and Gmail accounts. Your fiduciary may be unable to manage a social media account and retrieve pictures and other digital assets.
The Act is intended to address management of digital assets, which is defined as:
“Digital asset” means an electronic record in which an individual has a right or interest. The term “digital asset” does not include an underlying asset or liability, unless the asset or liability is itself an electronic record.
In order to obtain access to these digital assets, a person must specifically authorize this disclosure to the fiduciary in the relevant document. As many people have estate plans that predated the enactment of this Act and the prevalence of modern-day online life, those documents likely do not contemplate access to these accounts and the digital assets in them. Consider updating your trust, will and durable power of attorney to include access to digital accounts and management of digital assets.
Some services, such as Facebook, have mechanisms to allow someone to designate a person to control these assets. If a person chooses to use such a mechanism, per the Act, such a designation will override a contrary designation in an estate planning document.
Companies have 60 days to respond to a request for disclosure of digital assets under the Act.
The Bottom Line:
Not preparing a list of accounts, usernames, and passwords may significantly delay the administration of a person’s financial and digital assets.
Sudden incapacity or death of an account owner may tie up an account until a person with legal authority to act has been appointed and recognized by the entity where the account is located.
Not being able to access a loved one’s funds could have devastating consequences, especially during a time of financial hardship and uncertainty such as society at large is experiencing during the COVID 19 epidemic.