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Who Controls Your Digital Assets When You Die or Become Disabled?

What will happen to your Facebook, Instagram, LinkedIn, personal email, cloud storage, and other digital accounts when you’re no longer able to manage them? If you haven’t planned for control and custody of these accounts and assets, your loved ones may be in for a headache (and things might not happen the way you’d like!).

Who Has the Right to Access and Control Your Accounts?

Illinois enacted legislation in 2015 that governs how your social media and other digital assets may be accessed and controlled after your death or inability to act. Specifically, Illinois (among approximately 35 other states that have passed similar laws) now has a three-tiered system for access and control, starting with a person you’ve designated through an online tool provided by the custodian of the account. For example, Facebook allows you to name a “legacy contact.” Some online tools offer additional options, such as the ability to have all of your account data deleted upon your death or after a period of inactivity. The online tools are created independently by the custodian, so terms will vary and this option may not be available at all for some accounts.

If you didn’t – or couldn’t – name a person to act for you using an online tool, Illinois law upholds the powers granted to an agent or representative that you’ve named using a power of attorney, will or trust. A court-appointed guardian or executor is granted the same authority. To ensure that your agent or representative has the powers necessary to handle these assets, any estate plan should include specific provisions regarding digital assets.

Finally, if you don’t have an estate plan and no representative has been appointed for you by a court, what happens to your digital assets will be subject to the Terms of Service agreement (“TOS”) you clicked “I accept” to (but probably didn’t read in full) when you set up the account. The TOS will likely have different terms for each custodian, and may contain provisions you don’t want – such as deletion of your account or access granted to next of kin.

Digital Assets Have Value

Whether of monetary or sentimental value, for purposes of family history, or simply access to important information, digital accounts and assets are valuable (at a minimum, to surviving loved ones) and ubiquitous, now a part of nearly every estate settlement process. There are complications and risks for the fiduciary administering the estate as well – under certain circumstances, it’s a violation of federal law to access a person’s digital accounts or assets without the express consent of the owner, even if that person is unable to access the account themselves. However, this pitfall can be avoided with careful planning.

Questions to Ask Yourself

Here are a few issues to consider when thinking about the disposition of your digital assets:

  1. Do I have a secure, complete record of all digital accounts with usernames, passwords and any other access-related information?
  2. Do I want my social media accounts to remain online/viewable after my death?
  3. Do I want to allow comments or editing on my social media accounts after my death?
  4. Do I want my agent/representative to have complete access and control over my digital assets after my death?
  5. Do I want social media accounts or personal email accounts treated differently than online access to banking, credit cards, etc.?
  6. Are there any accounts or assets that I want deleted in the event of my death?
  7. Do I have any digital assets of monetary value, and if so, how do I want those assets managed and disposed of (original music, artwork or literature; digital currency such as Bitcoin, etc.)?

Kelleher & Buckley, LLC Can Assist You!

The attorneys at Kelleher & Buckley, LLC can help you navigate the complex legal and personal issues that may arise after your disability or death surrounding the control and custody of digital accounts. For more information on how to plan for the disposition of your digital assets, call us at 847-382-9130 to speak with one of our qualified attorneys for a free consultation.

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