How to Manage Your Digital Afterlife
Floridians can protect their online and cloud assets via estate planningBy G.K. Sharman | Last updated on April 20, 2022
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You may have decided who gets the house after you die. Also the stock-market investments, the Rolex and Grandma’s antique china cabinet.
But what happens to your photos on Facebook—and a host of other online assets, ranging from sentimental (those photos) to financial (Instagram and YouTube for “influencers”) to hackable (banking or cryptocurrency holdings)?
“We’re living in a mostly digital world now,” says Michael Wild, managing partner at Wild Felice & Partners in Plantation. “Protection of digital assets is definitely something we spend a lot of time talking about.”
Assigning a Digital Legacy Contact to Online Accounts
Like tangible property, digital assets need to be accounted for in 21st century estate planning. State law prevents anyone from accessing them without specific authority from the original user—even if that person assigned a trustee with general authority over the estate.
“Everyone these days has Facebook; everyone has Instagram,” says Samah Abukhodeir, with The Florida Probate & Family Law Firm in Coral Gables. “Pictures on Facebook from 10 years ago—that’s something the family would want.”
Jennifer Okcular, at Nelson & Nelson in North Miami Beach, handled a case for the parents of a young man who died without designating an heir for his Apple account. Okcular had to go through Apple’s legal department, then to probate court, to access his stored photos. His fiancée, who could not bring legal action herself because they weren’t married, wanted them as mementos of their relationship.
“We had to have very, very, very specific language to tell the judge. The young woman was able to get what she needed, but it took more than a year,” Okcular says.
Although standard planning documents—wills, powers of attorney and revocable trusts—now contain specific language for digital assets, the most direct way to handle social media accounts is through the platform itself.
Facebook and other major platforms have legacy managers that let you specify the person you want to have access after your death. That person, following directions from the social platform, can then post messages or photos, access existing photos, post and allow tributes, or request removal of the account altogether. Legacy holders cannot log into the original account, read messages, remove friends or make new friend requests.
But digital asset planning goes way beyond sentimental value.
Digital Accounts Where Money is Involved
Social media influencers can make serious money when they have brand partnerships connected to their Instagram or YouTube accounts, says Wild.
“Some of these influencers have 4 million followers—that’s worth a lot of money,” he says. “The value of my social media account and Kim Kardashian’s social media account are vastly different.”
Those assets don’t disappear when someone dies or is incapacitated. Neither do airline miles or reward points for resorts.
Wild recently had to determine the value of about a million reward points being split between three siblings because their father had not designated a beneficiary for them.
Turns out they were worth 1.7 cents each, Wild says, which came to a tidy sum of $17,000. Wild advises assigning such assets to a trust or will, which stipulates what goes to whom, to avoid probate.
On the extreme end is cryptocurrency, an asset class that is way ahead of traditional estate planning.
“Holding a crypto asset in an exchange/marketplace [such as Coinbase] and holding the asset in an offline digital wallet is very different,” says Shawn Snyder, at Snyder & Snyder in Davie. “The former is more traditional, uses passwords and usernames that are normally recoverable, and generally can be accessed via fiduciary methods such as power of attorneys, trusts and probate. Storage of digital currency outside of these exchanges is decentralized, and there is no method of recovering lost passwords or usernames.”
For more traditional bank accounts and retirement portfolios that are accessed online, attorneys advise including these assets in your trust or estate plan, and keeping a list of passwords in a safe place.
“The problem is,” says Abukhodeir, “people don’t think about their digital assets whatsoever. We talk about it with every single client.”
For more information on this area of law, see our overviews of estate planning, wills, trusts, and probate and estate administration.
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