If you have an estate plan, when you die, the personal representative of your estate (and/or your trustee, if you have a trust) will be able to access most of your assets: your bank accounts, your investments, your real estate. But you may not have thought about your digital assets: your social media, photo storage, email and other communications. What happens to your digital assets after you die?
The answer to that question is complicated, but most state legislatures, including Ohio’s, have tried to update estate planning and probate law by enacting the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). That’s a mouthful, and what it boils down to is figuring out who can access your digital and online life once you’ve departed this earthly life.
Ohio adopted RUFADAA in 2017, and it can be found at Ohio Revised Code Section 2137. ORC 2137.03 offers individuals guidance as to how to plan for their digital assets. In subsection (A) of the statute, a user of a digital account can use an “online tool” to grant access to a chosen beneficiary. For example, with Facebook you can designate a “legacy contact” who can have access to and manage your account after your death.
The online tool is basically a “transfer on death” designation for your account, and it takes priority over any contrary designations in your estate plan or defaults provided by Ohio state law. ORC 2137.03(B) lets a user grant access to accounts, or deny it, by making specific provisions in their will, trust, or other estate planning documents.
The “U” in RUFADAA stands for “Uniform,” and one goal of the law is to promote uniformity in how administration of digital assets is handled from state to state. The law strives to balance possibly competing interests: the preference of the original account owner for privacy in their online accounts, and the need of a personal representative for access to the accounts in order to successfully administer the deceased account owner’s estate.
The default provisions of the law tries to strike this balance by protecting the privacy of digital communications (like email) unless the original user directs otherwise, but granting more ready access to other types of digital assets (like photographs).
So far, so good. But these policies may not have anticipated the types of blended accounts offered by providers like Google and Apple, where digital communications and other digital assets are intertwined. What happens when a personal representative needs to gain access to one of these accounts?
The simplest solution would be for all users of digital accounts to use the online tool provided by the website or provider to designate a beneficiary for that particular asset. There are only two problems with this solution: a very small percentage of people actually avail themselves of the online tools. (If you don’t believe this, ask your friends with Facebook accounts how many of them have designated a legacy contact).
The other problem is that some providers don’t offer an online tool to designate a beneficiary. Perhaps surprisingly, Apple is one of them. More than 80% of households have smartphones, and at least half have a tablet computer. A significant percentage of those products are Apple devices and are linked with an Apple account.
If an Apple device user dies or becomes disabled such that a personal representative or agent needs to take over the account, what happens? There are likely to be (at least) two access problems. First, many Apple devices, like iPhones, require a passcode to unlock. The personal representative may not have that passcode. If they do not, Apple cannot provide it. Apple can reset the passcode, but this wipes all data from the phone, frustrating the personal representative’s need to access the phone in the first place.
Even if the personal representative does know the device’s passcode, they may not know the password for the original user’s iCloud account which backs up their data. In situations like this, Apple routinely seeks a court order before turning over the contents of the account. These orders are typically requested to state that the personal representative is acting as the agent of the deceased and that the personal representative’s authorization constitutes “lawful consent” under the law. The Electronic Communications Privacy Act (ECPA), which governs these issues, was enacted more than 30 years ago—long before iPhones and iCloud accounts appeared on the scene.
Courts are still working out the issues that allow personal representatives to access Apple accounts. One Massachusetts court has provided authority that a personal representative’s authorization is “lawful consent” to disclose iCloud contents. But even that consent is not the same thing as consent to access the content of digital communications.
One thing is certain: if you want your personal representative to have access to your Apple account, the simplest way to do so is to make sure you make your passcode and iCloud account password available to them after your death, and to provide them clear authorization to access that account and other digital accounts in your estate planning documents.
If you have online or digital accounts, including email, banking, cryptocurrencies, social media, and photo storage accounts, speak to an experienced Ohio estate planning attorney about granting access after your death to your personal representative.