As it stands, Delaware is the only state in the U.S. that fully recognizes the importance of digital assets as part of a legacy. Representatives proved that last year by signing into law House Bill 345, the Fiduciary Access to Digital Assets and Digital Accounts Act. The bill granted families access to their loved ones’ online accounts and in so doing leapt ahead of most of the nation in terms of legislature involving advancements in technology. A handful of other states allow lesser degrees of entry. Indiana, Idaho and Oklahoma legislation cover social media and blogging accounts while Connecticut and Rhode Island laws pertain to only email. But most states uphold strict security standards with respect to online accounts and tend to cite the Stored Communications Act of 1986 – the federal law that governs the protection of a person’s electronic data. So if you live in any of the remaining 44 states, you’re out of luck unless you have a detailed list of accounts and passwords. That holds true even for the executor.
The problem here is that legislature can’t hope to keep pace with technology. It takes time to recognize trends and decide if those trends will stay a trend or become a new way of life. At that point, a bill must be drafted and is subject to many revisions and much debate. By the time it passes, it’s practically outdated.
An article in the Huffington Post, “Have You Reviewed Your Digital Estate,” references a case in which outdated legislature curtailed a family’s efforts to learn why their teenage son committed suicide. Ricky Rash’s parents were desperate to access his online accounts, hoping they might find some clue as to why he had taken his own life. But this family was met with the harsh reality that they would not be granted access to their deceased son’s digital information as a result of the aforementioned Stored Communications Act.
While this is an extreme example given how young Ricky was, this unfortunate story underscores the importance of planning for the shortcomings of the law. Don’t assume laws will protect your family when you pass away or become incapacitated. Instead create a detailed and thoughtful legacy plan for your digital assets.
Here’s what you need to include about each account:
- Account name
- Account contents
- Instructions outlining what you want done with the account
Creating a list like this ensures there’s no confusion. Even if you live in one of the states that grant families various degrees of online access, you ought to capture this information. Reason being, your heirs will have to petition each account purveyor for access even if the law is on their side. If you have it laid out and organized, you’re saving them the time and hassle of tracking down all the necessary approvals. It’s best to think of those laws only as a safety net or backup.
Develop and record your legacy with the help of LegacyShield.