Our photos, messages, music, videos, online banking and even virtual currency now live on phones, laptops and in the cloud. When someone passes away, these digital assets are part of the story of that person’s life – and, in many cases, part of the estate that must be carefully and lawfully administered.
The digital world may be abstract, but when it comes to probate it is not so different from the world of bank accounts and antiques. A digital asset is any electronic record over which you have ownership or control. This may include:
Some of these assets are deeply personal; others may hold significant economic value. All of them can create real challenges if no one knows they exist or how to access them.
The Surrogate’s Court has worked with families whose loved ones did nearly all of their banking and bill-paying online, often through a single smartphone. If a decedent’s financial information is only accessible through a locked device and no one knows the passcode, it may be impossible to locate or manage critical accounts.
Phone manufacturers and service providers may refuse to unlock devices or share encrypted data without proper legal authority, even when presented with court orders. For that reason, it is essential to include the digital world in your planning – both to protect your privacy and to ensure that someone you trust can carry out your wishes.
On September 13, 2017, New Jersey enacted the Uniform Fiduciary Access to Digital Assets Act, now codified at N.J.S.A. 3B:14-61.1 through 3B:14-61.18. This law authorizes an executor, administrator, agent under a power of attorney, guardian, or trustee, under certain circumstances, to manage the electronic records and digital assets of a decedent, principal, incapacitated person or trust creator.
Key concepts in the Act include:
The Act also makes clear that a fiduciary’s authority over digital assets is subject to:
A fiduciary acting within the scope of his or her duties is treated as an “authorized user” for purposes of computer-fraud and unauthorized-access laws, but may not impersonate the user or exceed the authority granted by law and by the court.
There are no “cookie-cutter” answers in estate planning. What is right for you may not be right for a friend, coworker or neighbor. It is vital to sit down with an attorney or other qualified professional and develop a plan that protects both your traditional property and your digital assets – especially if you have children or other loved ones who depend upon you.
One of the most important steps you can take is to make a clear, organized record of your digital world and keep it in a safe place.
To help you organize your online accounts, photos, videos and other digital information, you may either download a printable checklist or complete our online worksheet and then print or save it as a PDF.
Many providers now offer built-in tools that allow you to decide what happens to an account if it becomes inactive or upon your death. Examples include “legacy contact” options on social media, or settings that allow downloads of account data by a trusted person. Under New Jersey’s law, your choices in these online tools may control even if they differ from instructions in your Will or other documents, so it is important that your settings and your estate plan work together.
This section of our website does not propose a solution to broader debates over civil liberties or government access to encrypted data. Rather, our goal is to focus on your needs – how you can preserve your privacy, pass along treasured memories and ensure that the fiduciary you choose has a clear path to follow.
Remember: you must communicate with someone you trust. Make time to sit down with a live professional who can give you individualized feedback. Bring your list of digital accounts, along with a sense of which items are truly important for your family. Work together to design a plan that respects your privacy, honors your wishes and follows the law.
Just as important, once you create your digital inventory, maintain and update it. If you change passwords, open new accounts, add new photo libraries or acquire new digital assets, make sure your list and your planning documents keep pace.
If you have questions about how digital assets may affect a probate matter in Bergen County, or if you are unsure where to begin, please do not hesitate to call the Bergen County Surrogate’s Court at (201) 336-6700. My staff and I are grateful for the opportunity to serve our friends, neighbors and families here in Bergen County, and we are always glad to help point you in the right direction.