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Digital estate planning: Control your photos so they don't vanish forever

by Robert Bailey | Contributor
August 5, 2022

When evaluating your estate plan, you spend the lion's share of the time ensuring that your financial assets are properly preserved and distributed to your loved ones. Rightly so. Protecting your assets and making sure your family is taken care of should be of the utmost importance.

Most state laws governing estates and executors were enacted before digital assets even existed. So, until recently, there were no laws on the books for dealing with unique issues such as accessing digital photos and accounts if an owner passed away. Often, executors were unable to access them, and they were deleted by the company that controls them, resulting in the permanent loss of precious memories.

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In thinking about the unique problems modern technology has created in estate planning, it's hard to believe that Facebook has only been around since 2004, and the first iPhone was not introduced until 2007. Cloud-based photo storage services are even newer.

Considering the “novelty” of this concept still, it's no wonder that, despite the rapid advances in modern technology, estate planning often neglects to address how to provide to your heirs the memories you have stored up, especially digitally, over the years.

They say a picture is worth a thousand words, so why is it that we often fail to address how we will preserve and transfer these priceless memories to our loved ones? Just as you should have a well thought out estate plan for your finances, you also need one to protect those memories as well. Doing so is vital to sharing your legacy about who you are for future generations.

Memories and modern technology

Memories cannot be replaced. While modern technology can be a beneficial tool in preserving those memories you need to educate yourself on the pros and cons. Here are four options to consider when using technology to store and preserve your memories.

  1. Scanning. At a basic level, if you have hard copies of photos, the first thing you can do is scan them and save copies to your computer. However, if this is all you do your memories are still at risk. If you only store your photos on one computer, you are one step away from losing them if your computer crashes or suffers a data breach.
  2. Portable hard drives. These drives can be used to store photos as well, but with any external hard drive, it can be subject to damage or loss just the same as your hard copy photos.
  3. Social media. Many people rely on social media websites such as Facebook or Instagram to serve as their primary means of storing photos. While they are likely to not be lost or damaged, it is not an ideal means for preserving photos.
    • There are some practical reasons to avoid using social media as your primary storage for your memories. For instance, social media websites compress your photos and videos to a lower resolution, resulting in reduction of quality when they are reproduced.
  4. Cloud storage services. Using cloud services is a great way to protect your photos from the possibility of loss without losing the quality of the photos. There are several third-party cloud storage services such as Google Photos, Apple iCloud Photos and Flickr.

As we'll discuss, the complication with these services comes when someone other than the owner (for example, an executor) attempts to access those photos. Federal privacy laws and the company's user agreements often contain several roadblocks executors must navigate.

Complications with digital assets and estate planning

We often fret over how our money will be transferred to our heirs. However, we often fail to consider what will happen to family pictures and videos when we die.

We store photos in the cloud, which seems safe, but do we know who actually owns them? What if the company stops operating? In addition, one's photos may be contained over several devices and services. How will your executor know what to do?

Digital asset laws

The law is clear when it comes to handling a decedent's physical property. However, when it comes to digital assets and estate planning there is little legal precedent and some gray areas. Fortunately, some of this has been made easier by the adoption of the Revised Uniform Fiduciary Access to Digital Acts (RUFADAA) by most states.

The RUFADAA was drafted to provide a clear and legal path for executors to manage digital media, such as photos stored online, of a deceased individual. It does so while balancing the privacy of the owner and necessary legal protections for the custodians of the photos.

However, there are still some complications when dealing with photos and other digital content of a decedent.

User agreements

A large part of the complications arises from the third-party web service's user agreements. Web services that provide cloud storage are controlled by a user agreement between the content owner and the service provider.

This user agreement, among other things, usually contains strict privacy laws. While it's important that your privacy is protected, it can cause issues when it comes time for your heirs to access these photos. For instance, some companies require a court order naming the rightful inheritor of the photos before they will be released.

In addition, there are other aspects of the agreement that could impact your heirs from accessing your photos. These include whether the agreement expires when the individual dies and how the company deals with the retention of your photos.

The RUFADAA, which has been adopted by most states, provides a way to both protect your privacy and ensure that your heirs will not face any unnecessary obstacles when trying to access your photos. The RUFADAA allows you to specify in your will what access the executor of your estate can have to things such as your email, social media profiles and third-party online accounts.

However, most states do not have specifics on a uniform way in which that access should be provided to an executor. For now, executors will have to contact each company to determine their policy on how they will provide access. As estate access to these accounts becomes more common practice over the years, hopefully a more uniform process will be developed.

Digital estate planning for your memories

What once might have been considered a novelty is now reality. The transfer of your digital content to your heirs should be an important part of your estate planning questions. As the question of how to protect digital content has grown over the last few years, it is now starting to become common practice to create a digital estate plan in conjunction with traditional estate planning.

How to create a digital estate plan

Without digital estate planning, you may lose those precious stored memories and your loved ones may never have the ability to access them. Here are some things you should do when incorporating content stored online and other digital assets into your estate plan:

  1. Take an inventory of your digital assets. a senior man taking inventory of his digital assets on computer

    The first thing you want to do is know exactly what you have. Take the time to develop a detailed list of every digital asset you own.

    This may be a time-consuming process as it may involve searching through multiple devices, data and other digital accounts. This is a necessary step before you determine how you want these memories handled when you pass away.

    As it pertains to photos, this does not mean you literally have to detail every photo you have but you need to have a complete list of how many photos you have and stored on what accounts (e.g. 2,500 photos on Google Photos, 4,000 photos and 75 personal videos on Flickr, 8,000 photos on iPhone 8, etc.)

  2. Set up a legacy/emergency contact where allowed.

    If you have your photos on a cloud- or web-based service, they often allow you to provide a legacy or emergency contact that can make decisions for you when you pass away. Each company differs in what they allow this contact to do but it can certainly be a helpful safeguard for protecting your photos stored online.

  3. Check the process of companies where you store your photos.

    Some companies may already have a process in place for providing heirs access to your photos. It may be that you can work directly with the web service you use to ensure your photos are preserved and provided to your heirs.

  4. Organize and secure your access information.

    Even if you include your digital photos in your estate plan, it is still helpful to take active steps to ensure your heirs can access them directly if needed. Make sure to develop an organized way to both secure your access information (e.g., logins, passwords, security questions) and provide instructions for how your heirs can gain access.

    If you want to go the electronic route, there are several password managers that provide a way to keep all of your access information in one secure location. Keep in mind, this will be helpful for aspects of your estate beyond accessing photos. This can be helpful when an executor needs to gain access to online portals such as banking, utilities and mortgage companies.

  5. Decide how you want your digital assets handled.

    Next you want to decide how you want these digital assets handled when you pass away. This involves making various decisions, such as who you want to own your digital content. You also need to decide whether you want any social media accounts with your pictures deleted or if there are photos in other accounts you may want deleted.

  6. Update your estate planning documents.

    Finally, you are going to want to update your estate planning documents to formalize how you want your digital assets handled and distributed. Just make sure that you do not include specific usernames or passwords in your will, which becomes a public document when filed with the probate court.

It is important to consult with an experienced estate planning attorney to make sure they can assist you with addressing the complexities involved with planning the handling of your online photos and other digital assets. While we have been discussing how to provide access to photos the same is true if you want more privacy. An experienced Legacy Plan Network Attorney can advise you on how to best protect your privacy as it pertains to your digital photos.

Unique aspects to consider

When preparing to incorporate online photos and other digital assets in your estate plan, it's important to understand certain unique aspects you will have to take into consideration.

  • Privacy. The language of the RUFADAA, while providing a means for executors to access your photos, still has provisions designed to protect your privacy. The RUFADAA was also drafted to be fully compliant with the privacy provisions of federal law.
    • That means that executors only have authority over digital content that a decedent explicitly consented to. If explicit consent is not provided the executor is required to petition the court and explain why they need access to any digital assets not explicitly referenced by the decedent.
  • Limitations. Custodians of your photos do not have to provide access to an executor if the account was deleted. In addition, their compliance is limited to only reasonably necessary requests, and they can charge fees to an estate for requests for access.

Preparing instructions for your executor

Beyond providing explicit access to digital assets in your estate plan, you also want to provide certain safeguards to make sure there are no hindrances or complications when the time comes for the executor to access your digital photos.

Even with the adoption of the RUFADAA and explicit language in your estate planning documents, it will still require a lot of leg work from your executor. In addition, the custodians of the digital assets your executor is trying to access may still fight to provide you the access to the content.

As mentioned, you may want to consider preparing formal instructions for your executor to access your accounts to ensure they have unfettered access. Here are three simple steps when preparing instructions for your executor to access your digital content:

  1. Include detailed information. When you include provisions in your last will and testament for digital photos, it will contain more generic information (e.g., “Executor shall have access to all photos located on my Google Photos account and shall distribute them to the following heirs …”).
    • In this legal document, you want to include specific access information and instructions. Include links to all applicable websites along with the usernames, passwords and even security questions. For each account provide specific details as to what you want done for each account.
    • For instance, list if there are any specific photos you do not want shared or if you want the account deleted after the executor accesses the photos. In addition, if there are photos simply on a device, list the specific device, any passwords, and where on that device to find the photos.
  2. Secure the letter. Make sure the letter is in a safe place. Ideally, you will want to place it with your other estate planning documents and in a location that is unlikely to result in theft or damage (e.g., fireproof safe). Regardless, make sure you inform your executor of the location.
  3. Update your letter. Over time account information and devices may change. Make sure you continue to update your letter as these changes occur.

While handling digital assets is a relatively new practice for estate planning, it is still an important item that should be addressed. A Legacy Plan Network Attorney can help ensure that your online photos and other digital assets are protected and preserved to the same extent as your traditional assets.

Conclusion

Preserving a lifetime's worth of memories is an important item to consider when planning your estate. They should be treated with the same care you would any other valuable assets. Leaving it up to your heirs to figure out can create an emotional burden and may even lead to additional expenses and the inability to access those memories. Digital estate planning can ensure that you have the privacy you need while making sure there are no complications for your executor or heirs.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at legacyassuranceplan.com.

Phone - 844.445.3422
Email - info@legacyassuranceplan.com
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