Estate Planning for Digital Property: Action Required

By: Cindy L. Hangartner and William S. Milne

Published in the August/September 2016 issue of 5ive for Women:

Five years ago, a survey reported that the average American valued their digital property at about $55,000; as technology grows and evolves, this number will continue to grow. Digital property includes the authority to control digital devices and accounts such as desktops, laptops, tablets, storage devices, mobile phones, smartphones, email, social media, iTunes™ music, and digital photographs, just to name a few. What happens to your digital property if you become incapacitated or after you pass away? Will your family or business associates have access to your digital legacy or important information? Without additional planning on your part, privacy laws and service contracts make these difficult questions for your family to resolve.

Effective April 1, 2016, the Wisconsin Legislature passed the Wisconsin Digital Property Act. This is an “opt-in” statute, meaning that you must take action for the Digital Property Act to apply to your digital property. By “opting-in” you give your agents under a financial power of attorney, personal representatives, and trustees the ability to receive an electronic catalogue of your accounts. Without specific authorization in your estate planning documents or a separate court order, these individuals will not have legal access to actual electronic content. For example, an agent with authorization to receive an electronic catalogue for your email account would be able to see dates and times you sent and received emails along with the email addresses associated with the electronic communications, but they would not have access to the underlying content of any email communication.

There are three tiers to consider when granting access to the electronic content of your digital property: online digital legacy tools, estate planning documents, and the terms of service contracts you agreed to when setting up an account with a provider.

Online digital legacy tools are similar to designating a beneficiary on a bank account. A provider will allow your designated beneficiary access to at least some electronic content from that digital account. For example, Facebook® has an option to add a legacy contact who can manage your account after your account becomes a memorial to you. However, the legacy contact cannot log into your Facebook account, remove or change past posts or photographs, read messages you have sent to friends, or remove friends from your account. Facebook does not allow you to select a legacy contact until you are 18 or older. A provider will follow any direction given by you using an online digital legacy tool, not your estate planning documents.

You may also update your estate planning documents to “opt-in” to the Wisconsin Digital Property Law and grant agents, personal representatives, trustees, and named beneficiaries access to your digital property, including the electronic catalogue and the electronic content. While an agent, personal representative, or trustee may not need access to the electronic content of your digital property, a beneficiary would not actually receive your digital legacy if that beneficiary can only access an electronic catalogue of your digital property. For example, access to the electronic catalogue showing that you have 244 photographs on Shutterfly® but not actually having authority to see the photographs is not helpful to your beneficiaries. When “opting-in” through estate planning documents, you should, at a minimum, update your financial powers of attorney and wills to include digital property language.

If you do not use an online digital legacy tool or include provisions for digital property in your estate planning documents, your agents’ and beneficiaries’ access will be limited to the terms of service contract with the provider. The terms of service contract is the agreement you click on saying “I Agree” to the terms in order to set up an account with the provider. Of course, most people do not read the terms of service contract before setting up the account. Due to federal and state privacy laws, terms of service agreements typically are between the provider and you as the only authorized user of the account. You typically cannot assign your rights to any other person and you specifically agree you will not share your username or password with any other person. This contract will not allow another person, even a family member after you pass away, to access your account as an authorized user. If you simply leave your username and password to a family member, the provider can shut down the account after you pass away because the family member is not an authorized user and is in violation of the terms of service contract. To protect your digital legacy, your best solution is to update your estate planning documents so named beneficiaries have access to the content of your digital property. Another option that may be allowed by some providers is to download the content of your digital property to a flash drive or other storage device that is not subject to a terms of service agreement. Attorneys Cindy L. Hangartner and William S. Milne are both

To protect your digital legacy, your best solution is to update your estate planning documents so named beneficiaries have access to the content of your digital property. Another option that may be allowed by some providers is to download the content of your digital property to a flash drive or other storage device that is not subject to a terms of service agreement. Attorneys Cindy L. Hangartner and William S. Milne are both

Attorneys Cindy L. Hangartner and William S. Milne are both shareholders with Weld Riley, S.C., and advise clients in the areas of estate planning, probate, tax, farm and business suc-cession planning, and business and corporate law. This article should not be construed as legal advice applicable to your specific situation and is intended for general information purposes only. If you have any questions regarding this article, you should consult your legal counsel.