Ideas. Lessons Learned, and Occasionally, Opinions
When your client dies, who owns the pictures on their Facebook page? Who has control of their electronic bill-payment sites or Bitcoin account? Who is responsible for shutting down or memorializing social media sites? Digital rights ownership is an increasingly complex issue as our online lives continue to expand. Are your clients prepared to safeguard these assets after they die?
If your client does nothing in advance, disposition of digital assets goes according to the TOS (terms of service) of each individual site, which vary widely. In fact, many survivors have been shocked by sites that do not allow transfer of ownership or access upon death, or that complicate the settlement of the estate. Rules have been more flexible for minors in states that allow parents or guardians to manage deceased children’s accounts. Yet some families have had to get court orders to obtain rights to their loved one’s digital accounts, a process that can take months or years.
The Fiduciary Access to Digital Assets Act
Several states began to take action by passing a Fiduciary Access to Digital Assets Act. This gave the executor access to all digital accounts and allowed digital assets to pass according to the decedent’s will. However, it ran into legal trouble based on privacy. Some people, for instance, did not want their executor to see highly personal information such as their history of emails and texts, and lawsuits ensued.
The acts were gradually amended to resolve these issues until finally, in 2017, states began passing the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). (http://www.uniformlaws.org/Act.aspx?title=Fiduciary%20Access%20to%20Digital%20Assets%20Act,%20Revised%20(2015). Forty states have now made it law, and it’s pending in five more plus Washington D.C. It will soon be nationwide. What does this mean for financial advisors and estate planners? Digital property now needs to be part of the estate planning process, and you need to help your clients prepare now for their digital afterlife.
Access to Digital Assets
RUFADAA allows the executor or another fiduciary appointed in the will to have access to any electronic or digital sites “necessary” to settle the estate. The necessary sites are largely those involving finances or financial assets, including shopping accounts, automatic bill-paying, online banking, etc. That very narrow provision protects privacy, as it does not allow the executor to access texts, emails, and more private information.
Yet RUFADAA allows for further permissions if the decedent clearly states so in the will. These permissions can cover desires such as whether a Facebook page is closed or maintained as a memorial page, whether a blog is deleted or archived and kept, and all your client’s other desires for digital sites.
Sites that fall under RUFADAA are required to give access to the named fiduciary or executor, but that process can take time and involves proving to the site that the client died. If usernames and passwords are accessible immediately, airline miles can be transferred, sites can be closed, and other desired actions can happen with less complication. It is important to note, though, that clients should never include usernames and passwords in the will, as it becomes a public document upon death.
Your Two-Step Process
There are two crucial steps to take with your clients:
1. Ensure the will includes your client’s intent for the executor or another named fiduciary to have access to digital accounts, how broad those permissions are, and your client’s wishes for disposition. Example: Can the named person see all the tweets, emails, and private personal information, or does access only extend to closing such accounts? What are your client’s desires for each site or each category of sites?
2. Ensure that your client completes another document giving more specific instructions (i.e. to whom they wish to transfer their airline miles and hotel points), and including usernames and passwords. This document should be signed, dated, and preferably notarized, and kept with the will so instructions are accessible to the executor.
To facilitate this, recommend that clients use one of the available services (i.e. LassPass.com) that generate secure passwords for every site and store the entire array of information necessary for access. The document then only needs to include the master password to that service, plus instructions for any two-factor authentication, so the named fiduciary can easily open the entire vault of usernames and passwords. Since the password storage service is dynamic, it also allows clients to maintain security by changing passwords regularly, without having to re-do the document.
Instead of allowing individual sites to determine disposition, take these steps to keep your clients in control and remove at least some post-death headaches. They will never forget it!
We have an unprecedented crisis happening in our country. Every day, 115 people die of an opioid overdose. From 1999 to 2016, 350,000 people have died. A recent survey by the AP and Center for Public Affairs Research found that 1 in 10 Americans know a relative or close family member who died of an opioid overdose. In April, the Surgeon General issued the first national health advisory since 2005, urging families and friends of addicts to carry naloxone, the drug that can reverse the acute effects of an overdose and give a greater chance of survival.
Clearly, we have a huge public health problem with more people dying per day due to opioids than were dying of AIDS at the height of that epidemic. Just as we found the will and resources to combat AIDS over 30 years ago, we need to do it now for opioids.
In addition to scope, there is another aspect of these two epidemics that is similar. When people died of AIDS, their family members were often reluctant to tell others the cause of death because of the stigma. The same is true with the opioid crisis, leaving families unsupported and isolated. It’s bad enough that our society knows so little about how to effectively support the survivors of a loved one’s death; with a stigmatized death, the situation is exponentially worse.
Many people don’t realize that opioid addicts generally begin taking the drugs to relieve intense pain from a medical condition, not to get high. Yet one of the ways opioids work is to increase the levels of dopamine in the body, resulting in a feeling of euphoria while relieving some of the pain. Even if all the pain is not relieved, that which remains seems tolerable because of the underlying “high”.
Addiction begins when the drug rewires the reward centers of the brain, causing the person to perceive anything less than the euphoria as being painful and creating a physiological craving for more of the drug. Tolerance requires higher doses, the euphoria increases, the drug continues to affect the brain, and the addict sinks into an ever-deepening need for opioids just to feel normal. For those who try to reduce or quit, withdrawal symptoms are intense, and they often give up, relapsing into drug abuse to eliminate the pain. It reaches the point where an addict will do anything to get the next hit.
How to Help
After an overdose death, the grief is profound. The family loses a beloved family member. They lose the future they hoped for with that person and the unique place that person held in the family structure. They have exhausted themselves with worry and attempts to help. There are feelings of guilt and inadequacy that the loved one couldn’t be saved. These reactions are combined with anger at the lack of resources for addiction and resentment towards the addict who wasn’t able to kick the habit despite whatever help the family could offer. At the same time, rather than the outpouring of support they would receive if their loved one died of something like cancer, the support is muted, tentative, or absent, replaced by judgment or simply the would-be comforter’s inability to know what to say.
Here are a few suggestions on how you can help a client, friend or family member dealing with this kind of loss: