If you’re making car or mortgage payments online and die, what happens? What if no one knows your passwords? After you die, who is entitled to access your photos, personal journal, and Facebook account?
At an Advisors4Advisors webinar on Friday, Gideon Rothschild, chair-elect of the American Bar Association Real Property Trust And Estate Planning Section, warned financial advice professionals about a long list of thorny new legal issues that are cropping up surrounding an disposition of digital assets upon death. He urged practitioners to educate their clients about these estate planning issues that did not exist a decade ago.
This Website Is For Financial Professionals Only
As an example of the issues financial planning practitioners must be prepared to deal with, Rothschild said that even if an individual has a decedent’s user name and password, a user agreement from could make it a criminal offense to log into the account. Meanwhile, Yahoo!’s user agreement, Rothschild says, allows deletion of an account upon presentation of a death certificate.
"Only with proper planning can we avoid disclosing secrets people want to maintain," Rothschild said.
Rothschild's remarks serve as a cautionary tale to fiduciaries, who are facing new professional responsibilities because digital assets have proliferated over the last decade as social media popularized Internet usage.
An executor of a will who logs into a decedent’s online accounts could be prosecuted criminally under the federal computer fraud and abuse law, Rothschild said, alluding to cases in which Facebook and Match.com’s user agreements were violated.
Eight states have adopted their own law on the disposition of digital assets, and the Uniform Law Commission is drafting model legislation for states to consider adopting, Rothschild said. The Commission
is specifically focused on drafting a model law for states that will vest fiduciaries with at least the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets.
The disposition of digital assets was one of four topics Rothschild taught advisors about at Friday’s A4A webinar. Rothschild also spoke about:
- last-minute tips about year-end estate planning that financial advisors should be speaking about with clients and communicating over social media about right now.
- DINGs, NINGs, and WINGs, which are non-grantor trusts that have become a timely topic because of a recent IRS private letter ruling (PLR 201310002).
- practical considerations for financial planning practitioners in addressing portability of a deceased spouse’s estate tax exclusion.
You can see a replay of Rothschild's webinar
and get CFP, CPA, CIMA, CIMC, CPWA continuing professional education credit on our weekly webinars for financial fiduciaries, if you are an Advisors4Advisors member ($60 a year).
A4A members can also download a free Digital Asset Inventory Questionnaire to begin to assist clients with planning the disposition of their digital assets upon death. If you're logged into A4A, click on the "View Public Profile" and then on the tab for "Rewards." Click on Premium Content link in red to get download the questionnaire.
Rothschild, who has agreed to speak quarterly at A4A webinars, received a very high rating from attendees of 4.7 and their reviews are below: