Digital Asset Authorization | Mylennium
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Questions & Answers

Doing nothing can lead to the loss of valuable digital assets that help form your digital legacy and are part of your digital estate, or conversely the release of some content you prefer to remain private and be deleted.

The variety and breadth of your password-protected online accounts make it difficult for a personal representative to locate and manage your digital assets should something happen to you. Most online providers can delete your account and its contents at their discretion and without liability per their terms of service (TOS) agreement. Left unchecked, online accounts invite identify theft.

Most TOS agreements prohibit access by someone other than you, including a spouse, significant other, family member, or other trusted individual. Recent state digital asset laws require your written authorization and consent before email, social media, and messaging contents are shared with a personal representative or other fiduciary. Other digital assets you prefer to be deleted and not shared with others also require your written directions.

Your Digital Asset Authorization includes detailed instructions that outline your next steps.

Information covers these areas:

  1. Signing your Digital Asset Authorization
  2. Creating a list of important online accounts and usernames
  3. Where to store your Authorization

Most online email account Terms of Service agreements prohibit access by anyone other than the account owner. Federal and state laws consider unauthorized access to an online account a criminal offense. An email message is considered the “content of an electronic communication” and is a special category of digital asset that requires the account holder’s written authorization.

A personal representative is the individual responsible for supervising the administration of an estate through the probate court. Although it’s common for a spouse, significant other, or family member to be appointed personal representative by the court, without an official appointment they are not recognized as the administrator of the estate.

Many state digital asset laws require that, as the account owner, you provide your written consent and authorization directing the online service to release the contents of your email, messaging, and social media accounts to your personal representative or other fiduciary.

Because the contents of your social media accounts are recognized by federal and state laws as the “content of electronic communications,” new digital asset laws require your written authorization to allow a fiduciary access to the contents in your account. In the absence of your authorization for fiduciary access, most social media services allow an immediate family member or personal representative to make a qualified request to close (delete) or memorialize a loved one’s account.

Many recent state digital asset laws establish an order of priority a provider uses to determine how your account should be handled upon your death or incapacity:

  1. An online tool offered by the provider that lets you specify your wishes
  2. Your direction in a will, trust, power of attorney, or other document including a Digital Asset Authorization
  3. The terms of service agreement between you and the provider

Your direction using an online tool may take precedence even if you provide more recent direction elsewhere. Presently, only Facebook and Google offer an online tool. For states without a fiduciary access to digital assets law, access is determined by the Terms of Service Agreement. Most terms of service agreements specify that the provider will not share or provide access to the contents in your account with anyone, including a personal representative, family member or significant other.

Your Digital Asset Authorization can provide an important missing element from your estate plan without incurring significant expense. Most existing estate plans rarely mention digital assets and how they should be handled. The Authorization complements your existing estate plan and meets the requirements of new state digital asset laws by providing your written authorization directing online providers whether to provide or withhold access to the digital assets in your online accounts.

At your next estate plan review, discuss with your estate planning attorney how your estate plan handles your digital assets and online accounts. Consider adding a Mylennium Digital Estate Plan for a comprehensive inventory and summary of your digital assets and how you would like each settled.

Federal and state privacy laws forbid providers from granting unauthorized access to email, messaging, and social media accounts to someone who isn’t an account holder. These restrictions apply to parents and guardians as well.

Most minors are very active on social media and messaging sites. Parents and their children should discuss using Facebook’s Legacy Contact and Google’s Inactive Account Manager online tools to provide access to the child’s account if there is an unexpected emergency. Have your child complete a digital asset authorization to confirm they authorize online providers to share their email, messaging, and social media digital assets with their parent or guardian.

Each spouse should complete their separate digital asset authorization to direct online service providers to share the contents in their respective accounts with a personal representative. Most online providers’ terms of service agreements prohibit access by anyone other than the account owner. Federal and state laws consider unauthorized access to an online account a criminal offense.

New state digital asset laws allow an account owner to direct an online provider to share the contents in their account with a personal representative or other fiduciary. If you don’t have a will, someone other than your spouse is the executor of your will, or you are simply uncertain about your estate plan, consult with your attorney to discuss this matter.

Your signed Digital Asset Authorization is a legal document and does not need to be notarized to make it part of your estate plan. However, having your signature notarized adds an element of certainty to the document as well as your wishes. Whether you choose to simply sign the document, or have the document notarized, always store your Digital Asset Authorization with other important documents. For more information, visit How to Sign Your Digital Asset Authorization.

A digital asset authorization is an important first step in planning for your digital assets. With a fiduciary authorized to act upon your digital assets, they will need to know about your digital devices and where they are located, your online services and usernames, and how you would like each account handled should something happen to you.

Mylennium’s Digital Estate Plan provides all of this information and more in a professionally bound document ready to include alongside your most important documents. We recommend that all clients use password management software to easily and securely track important passwords and private information which greatly simplifies a fiduciary's duties locating and settling their digital assets.