When death planning, don’t forget to account for your digital life

Bank statements in the cloud. Photos and emails on smartphones. Pictures and posts on social media sites.

The shift to a digital world has made life easier in many ways, allowing people to eschew physical photo albums, file cabinets, taking checks to the bank and waiting for the mail carrier.

That convenience, however, might not extend to your loved ones after you die. Unless you make plans for your digital afterlife — from photographs to cryptocurrency — accessing your digital assets once you’re gone can become a time-consuming, expensive and frustrating task for family and friends.

Attorneys cite “heartbreaking” examples, like the siblings of a Massachusetts man who, after his death, engaged in a lengthy legal battle with Yahoo for access to his email account, which went to the state and U.S. supreme courts.

Parents of a University of Minnesota student couldn’t gain access to his cellphone after his death in December 2013. They testified in favor of what eventually became a Minnesota law that, together with the Massachusetts case, has made accessing someone’s digital assets after their death into a fairly straightforward process.

Here is some advice from attorneys on how to make plans to manage and dispose of your digital assets — in much the same way you would for tangible property like vehicles, jewelry or collectibles — and make your passing a little easier on your survivors.

Traditionally, when someone becomes incapacitated or passes away, an estate-planning attorney like Jim Lamm would have family members gather their financial statements and bills so he could collect and distribute assets as well as deal with any debts or unpaid taxes. When those documents were on paper, that meant going through old shoe boxes or file cabinets and waiting for statements to arrive in the mail.

That’s much harder today, with most statements coming by email or even in an app on your phone, said Lamm, a third-generation Minnesota estate-planning attorney in the Minneapolis office of Lathrop GPM.

Lamm is a national expert on digital property issues and has done seminars from coast to coast to educate lawyers on the subject. He also helped write the law covering management and disposition of digital assets that’s now on the books in Minnesota and 47 other states.

Minnesota’s Revised Uniform Fiduciary Access to Digital Assets Act became law in August 2016. Under it, you can use online tools to designate a fiduciary or representative who can access your digital data after your death.

“It allows us to, at least with the right kinds of authorizations, ask Google, ask Yahoo, ask Apple, ask Facebook for a copy of the account contents,” Lamm said. “That way, we don’t have to deal with the passwords, the encryption, the data privacy laws or the criminal laws.”

These online tools include:

In addition to using online tools, Suzanne Walsh, an estate-planning attorney in Hartford, Conn., recommended signing a consent form to allow online platforms to disclose digital assets otherwise protected under the Stored Communications Act. That federal data privacy law prohibits disclosure of a person’s communications without their lawful consent. She likens the digital disclosure form to the consent forms patients sign to allow disclosure of health information under the Health Insurance Portability and Accountability Act (HIPAA).

“Most companies have not created online tools, so then we have to do that consent form as a backup,” Walsh said. “I refer to it as a HIPAA form for digital assets, which is nonsensical but explains that what we’re doing is giving consent under federal privacy law.”

State laws like the Revised Uniform Fiduciary Access to Digital Assets Act, however, presume users had to have given lawful consent before death, as in a will, according to a Harvard Law Review article.

That left open what to do when users haven’t given consent before they die, a question answered in the Massachusetts case mentioned earlier. In that matter, Ajemian v. Yahoo, the Massachusetts Supreme Court held that personal representatives can provide lawful consent on a person’s behalf after death.

“It said that a state court-appointed personal representative does stand in the shoes of a deceased person and can grant authorized access or authorized disclosure of those things for purposes of the federal law,” said Lamm, who, with Walsh, played a role in the Ajemian case.

Despite that ruling, some online platforms still require family members to seek a court order to access a dead relative’s digital assets if the relative had not used online tools to name a legacy contact, Walsh said. That can happen when an unexpected death occurs, particularly that of a young person.

There are some steps you can complete on your own now that will also help:

For those surviving loved ones, weigh the value of assets that hold sentimental value against the potential cost to retrieve them, Lamm said. Going to court can cost thousands of dollars and take weeks or months to resolve.

“The bottom line is: It’s good to plan ahead,” Lamm said. “But even if you don’t, there’s a process. It just may be slower and a little more expensive.”

Todd Nelson is a freelance writer in Lake Elmo. His e-mail is todd_nelson@mac.com.