Most individuals understand the need to dispose of their tangible and intangible assets upon their death and use either a Will or Trust to accomplish that. Although it’s clear that these documents govern the disposition of tangible and intangible assets, it’s not as clear that a personal representative or trustee can use the provisions of these documents to obtain access to digital assets. Thankfully, companies that host digital platforms have begun to address this issue. In mid-December, Apple released iOS 15.2 introducing the concept of the “Legacy Contact” setting. While this release may have flown under the radar for some, it certainly garnered attention in the Estate Planning world. The technology giant finally joined Google and Meta (formerly known as Facebook) in providing a way for designated parties to access the digital content of an account holder after death.
For those who are unfamiliar with the concept of a Legacy Contact, anyone who uses the Meta Platform (which includes Facebook and Instagram), a Google account, or an iPhone can select one or more individuals (Apple allows up to five and Google allows up to ten) to access those accounts and the digital content therein after death. Each organization has enacted different protocols regarding how much control the owner has over who can download their data or access the profile after death. For example, Apple takes an “all or nothing approach” essentially allowing the Legacy Contact to access everything including messages, files, and photographs if they have the access key. Google, however, employs a more selective approach and provides the account holder with options to tailor what gets shared after a period of inactivity, even going so far as to authorize a complete wipe of the account after a certain amount of time. Facebook grants the Legacy Contact permission to memorialize the account or delete it entirely after the user’s death. Generally, the Legacy Contact tools do not require the owner to share account credentials or passwords with the Legacy Contacts during life, nonetheless, the owner should exercise caution when choosing designees.
Most digital accounts contain the Legacy Contact set-up under “Account Information,” “Settings,” or “Inactive Account.” As with the individuals named in your Estate Planning documents, each user of such accounts needs to consider who should be named, in what capacity, and how much access you want to give that person if you have the option to limit access. Remember that not every digital platform empowers a user to choose what information gets shared so it’s important to review the policies and procedures for all of your digital platforms and remember that the individual selected may still need to provide requested documentation or proof of their identity. Of course, you can always provide access during life, but that creates a different issue of shared access while you are alive and actively using the account.
In addition to setting up Legacy Contacts, account owners have the option to store their login information in password manager applications. These applications such as LastPass and 1Password store current login information, generate unique passwords for all accounts linked to the service and grant the account owner the power to designate individuals who should have access after death. Of course, this requires advance action prior to death. 1Password has shared “vaults” that permit the designated individual to have access to the shared folder. In addition, users may print an “emergency kit” that includes log-in information and a QR code. The chosen individuals use the QR code to access 1Password’s website where they can log in to your account using the information provided in the kit. This gives the selected individuals access to any account stored in 1Password. Much like Apple, Google, and Facebook, LastPass allows the account owner to designate a list of trusted individuals and set a wait time. Once the owner designates the trusted individuals, LastPass invites each to create their own account. The trusted individuals may request emergency access to the owner’s account. If alive, the owner has the set wait time to approve or deny access. This method requires no death certificate or proof of death for access and accordingly is useful at death and during incapacity.
As companies continue to evolve and replace passwords with fingerprints, face scans, and device passcodes, they will need to develop and implement new back-end identity and authentication policies. You can set up access in your apps and device settings. It’s also important to share your phone passcode because many accounts require two-factor authentication, which requires the input of a code generated in apps or sent via text message. Even with the progress in technology, it’s still possible to use the old-fashioned approach of jotting down a list of accounts and passwords on paper and storing the list in a safe place with your other important documents. Whatever method you use, it’s vital to undertake the task of enabling the tools while you are alive to save your loved ones’ aggravation after your death. No matter the password-storage method you use, make it easy for your trusted contacts to know what accounts you have and how to log in. Without this access, the loved ones left behind would lose the information, photos, and other priceless keepsakes contained in these accounts.
Tereina Stidd, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
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