When you read that cryptic headline you may have thought "what is Kyle talking about now?" And, you would be right in thinking thusly ... as a first reaction.
However, this is a very serious matter.
Especially in this digital world.
Quick!
If something happened to you today, would your loved ones know what to do with your online life?
Would they be able to access the user names and passwords to all of your online accounts and take care of your financial business, let alone administer your estate according to your wishes?
If no, then you are at risk of leaving a big, old mess for your loved ones to clean up.
May I make a suggestion?
First, get your fundamental legal documents in ship-shape.
That means, at a minimum, your "general durable power of attorney" appointing your financial incapacity agents, your "advance health care directives" appointing your health incapacity agents, and your "last will and testament" appointing the personal representatives of your estate.
Then, once you have your legal "ducks in a row," create your VAIL.
No, this is not that great place to ski in Colorado, it is an acronym for Virtual Asset Information Letter.
In the absence of your VAIL no one you know and trust will be able to access your essential online accounts (and even social media) without your user names and passwords.
In fact, this was the subject of a recent article titled “Estate planning in a digital world” from The (Bend OR) Bulletin.
So, what exactly is a Virtual Asset Instruction Letter?
Basically, a VAIL is a document in which you can list your online accounts, the passwords for each one, and instructions explaining what, if anything, should be done with the content of each account.
There is a catch, as the article cautions.
Even if the folks you are providing this essential information have your permission, they may be violating the law.
Yikes!
It seems there is a 30-year-old federal statute still on the books called the federal Computer Fraud and Abuse Act of 1986.
1986? Have computers come a long way since then, let alone that thing called the "internet"?
I digress, but you were right with me if you caught the date of that federal law.
This law threatens criminal penalties for people who access online information “without authorization” or in a manner that “exceeds authorized access.”
Unfortunately, this federal law does not define what either of these terms means.
To make matters even muddier, the same ambiguity exists in the Terms of Service Agreements used by many online service providers. [You know, the huge documents we just scroll through and check that little box or click "accept" indicating that we have read and understood all of the blah, blah, blah?]
Problem: These Terms of Service Agreements can serve as a tripwire to snare your well-meaning loved ones with civil and criminal penalties for violating the Computer Fraud and Abuse Act.
As reported in the original article out of the Pacific Northwest, it seems the good folks up there are busily working on the Uniform Fiduciary Access to Digital Assets Act through the Oregon Legislature this session.
The UFADAA makes it clear the executor of an estate, court-appointed guardian or conservator, or trustee or another fiduciary has the authority to access online accounts to gather and distribute digital assets, prevent identity theft, and console loved ones with images and stories posted on social media.
Oregon’s UFADAA would not create a new law, as such, but it would update the state’s existing fiduciary codes to cover an individual’s digital assets.
Kansas and Missouri are considering the UFADAA themselves and, in total, about 28 states are at some stage in the process as well.
Stay tuned.
In the meantime, I would highly recommend visiting myducks.org for helpful tools and resources to get (and keep) your estate organized from stem to stern.
Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.
Reference: The (Bend OR) Bulletin (May 29, 2015) “Estate planning in a digital world”
