An executor must take an inventory of estate assets as part of the administrative process. The ease or difficulty of recording a decedent’s digital assets will depend on whether the decedent included specific provisions regarding digital assets in their estate plan or maintained documentation of their online account records. Even if a decedent specifically addressed digital assets in their estate plan, Terms of Service (TOS) agreements and legislation will regulate an executor’s ability to access to the accounts.
With fewer financial institutions implementing hard copy account statements, most investment, retirement, and even regular checking or savings accounts are managed primarily online. This may make it difficult to determine how many accounts a decedent owned and the value of these accounts for purposes of preparing the estate inventory of and ultimately distributing the accounts to estate beneficiaries.
Executors also face the varying powers and limitations granted through TOS agreements. Since TOS are not uniform, the executor must learn and comply with each account’s terms to prevent an inadvertent violation. For example, Facebook only permits the account owner to access the account. Facebook launched a Legacy Contact designation feature in 2015, which allows the user to appoint another Facebook user with administrative access over a memorial page upon the appointing user’s death. Thus, the executor might face complications in settling the account if the user did not complete their Legacy Contact or the Legacy Contact named is someone other than the executor.
More states are enacting legislation that grants fiduciary access to digital assets. As of this writing, North Carolina statutes provide for fiduciary authority to access or manage digital assets. This provisions is fairly new. The Revised Uniform Fiduciary Access to Digital Assets Act was signed into law in June 2016.
Account holders may opt to utilize one of the many different services now available that help to organize and record social media and online financial accounts for the purpose of estate planning. (Users should select a plan after careful research to avoid scams.) Many of these services allow the user to add their estate planning attorney’s contact information and produce a simple outline that the user can provide to their attorney and/or trusted family for future reference. Maintaining a secure, organized, and up-to-date list of account information and passwords could be a huge benefit to an executor who otherwise might not be aware of the extent of a decedent’s accounts.
What can executors do when they experience problems with digital assets during probate? Depending on the issue, the TOS of the problematic account might help guide the executor to a resolution. Contacting the account provider can help to identify options for moving forward in order to manage or close the account. A probate attorney can also provide counsel, educating the executor on resources available to them and advising the executor of case law or pending legislation that could impact their ability to manage and distribute the estate assets.