Accessing the Modern-Day Photo Album (The iPhone) After A Loved One’s Death

Some people might remember their parents fireproof boxes, stored under the bed, full of negatives of the family photographs that they couldn’t risk losing. Today, this practice is obsolete. In the era of digital photography, where your iPhone takes better photos than advanced digital cameras did even 5 years ago, how can you make sure that your digital photographs are passed down to your family? If you store your digital photos in iCloud, do you know what happens to your photos once you have passed away?

Apple, has famously flaunted its privacy and security measures, Recently, the company demanded that Peggy Bush, a 72-year-old widow, procure a court order to unlock her late husband’s Apple ID. Just last year, Leonardo Fabbretti spent months pleading with Apple to allow him access to his deceased son’s photos, which were stored on his iPhone, but not in iCloud. His battle concluded with Apple telling him that it was impossible to unlock his deceased son’s iPhone.

Unlike Google and Facebook, which have somewhat effective mechanisms for handling your digital assets upon your death, Apple does not currently have any built-in way for users to plan what happens to their accounts after they die. In addition, they have no definitive and official policy on such issues as of the date of this writing.

The common-sense solution to this problem seems to be to share your passwords with family members of friends that you trust. However, the iCloud terms and conditions prevent effective transfer of your photos, maintaining that you forfeit all rights to your account when you die. While it might be legal for you to share your password with someone else–the iCloud terms and conditions seem to equivocate on this issue–it is almost certainly unlawful for that person to subsequently use that password to access your data. In sharing your password with you family members to use upon your death, you may be setting them up for a federal crime in violation of the Computer Fraud and Abuse Act.

Many people take it upon themselves to contact Apple after the death of a love one to access their accounts. Many are successful in accessing their loved one’s digital assets if they can show proof of death and a family relationship; but many are not so lucky.

In light of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which was enacted into law in Colorado last year, it’s very likely that Apple’s will soon discontinue providing access to digital assets upon the deaths of their users in more and more circumstances.

The importance of one’s photographs tends to increase with age while; unfortunately, age also seems to bring with it a certain decrease in technological know-how. Steps to mitigate the risk of losing your cherished memories must be taken sooner rather than later. These steps must also be taken outside the confines of Apple products and services.

An attorney can help you to navigate the murky waters of the seldom-reviewed Apple terms and conditions, which present legal barriers to the solutions which seem most obvious. A digital estate plan prepared by a licensed attorney will help you and your family by itemizing your digital assets, some of which your family may not know about, and also by providing the appropriate parties with access to those assets.

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Who Will Have Access to Your Digital Assets? Are You Sure?

The Revised Uniform Fiduciary Access to Digital Assets Act, “RUFADAA”, is a law that regulates who can access digital assets on behalf of another person, which includes accessing the digital assets of a person who is deceased. In attempting to balance user privacy with the access rights of fiduciaries, RUFADAA places significant limitations on the ability of an agent to access a user’s digital assets, and defers to user’s wishes when they are available.

The law achieves its goal of standardizing the previously convoluted way in which access to digital assets is granted by, introducing a system of priority for deciding who can gain access to another person’s digital assets.

The first level of priority that RUFADAA defers to is called an online tool. An online tool is a feature built into some online platforms that allows for users to chart what will happen to their account when it has been inactive for a certain amount of time, or upon notification of the user’s death. Google and Facebook, for example, have online tools called Inactive Account Manager and Facebook Legacy Contact, respectively. These tools allow users to designate another person to whom their data will be sent or to erase their data entirely.

In the absence of an online tool, RUFADAA defers to the terms of service agreement in determining what a fiduciary may access, and when, if ever. Custodians of digital assets often have provisions within their terms of service that regulate what happens to a deceased user’s account. Apple, for instance, as of the date of this writing, provides that a user forfeits their claim to their iCloud account at death.

However, not all terms of services agreements account for what happens when their users die. When neither an online tool nor a terms of service agreement is available to govern a deceased person’s account, RUFADAA addresses how access to digital assets works for different types of fiduciaries including personal representatives, conservators, agents acting under a power of attorney, and trustees. The general rules of access for each of these categories of fiduciary are as follows:

Personal representatives may only access digital assets when the original user consented to disclosure or a court orders their disclosure. Such consent can be provided for in a will, but must be made explicit.

A conservator is someone appointed by the court to manage a living person’s assets. Before accessing a protected person’s digital assets, a conservator must be specifically authorized by the court to do so.

An agent acting under a power of attorney may access a user digital assets to the degree permitted by the user in the power of attorney form. The power of attorney form must explicitly provide for access to the principal’s digital assets.

When trustees are not original users of the account in question, they will be given access to the digital assets of the user, including the content of electronic communications, when they are authorized to do so by the trust. The trust document must explicitly provide for access to digital assets.

RUFADAA is a complicated law and ensuring that your digital assets fall into the right hands is not easy. A licensed attorney who specializes in digital assets and estate planning can help you make sure that your will, power of attorney, and/or trust contain the right provisions to direct and control your digital assets when you are unable to do so for yourself.

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Three Steps for Cryptocurrency Estate Planning

Cryptocurrency, unlike other Digital Assets, are typically not controlled by any third-party. Thus, compared to other Digital Assets, planning for the succession of Cryptocurrency can be far simpler than planning for the succession of iCloud photos, Blogs, Social Media Profiles, etc., because there are no restrictive Terms of Services agreements to navigate.

1- Get a Will

Without an estate plan, any efforts to plan for the succession for your Cryptocurrency will not be successful. Having an estate planning attorney that is comfortable working with Cryptocurrency draft you a simple will or trust can take care of this. No, just writing down your wishes on a piece of paper is not going to work. Tell the personal representative that you name in your will to see an attorney that understands Cryptocurrency to help them administer your assets once you pass.

2- Make Some Lists

Get a list together of:

  • the exchanges and wallets that you use to trade cryptocurrency;
  • usernames and passwords for each exchange and wallet
  • your phone’s pin/password
  • any password necessary to access Authenticator (or whatever two-step verification app your exchanges and wallets may use)
  • bank names and account numbers that your exchanges are connected to
  • the location of wallet backup seeds

Once a year, update this list. 

3- Leave Instructions

The storage and access of Cryptocurrency can be complicated. Think about your parents or grandparents attempting to access your Cryptocurrency on their own – it’s not going to happen without detailed instructions and the assistance of someone who understands Cryptocurrency.

Just because someone may have the necessary information to access your Cryptocurrency does NOT give them the legal right to do so. This right must be created in your estate planning documents by appointing an appropriate digital asset personal representative and/or trustee.

Pamela Morgan recently wrote a fantastic blog post with a sample letter that can be used, in conjunction with proper estate planning, to assist your named personal representative and/or trustee to access your Cryptocurrency. Pamela Morgan’s suggestions may certainly make it easier for you and your attorney to work together in developing a complete Digital Asset Estate Plan.

The attorneys at Gendelman Law Group understand how to plan for the succession of Cryptocurrency, call them at 720-213-0687 today for a free consultation!

Why Millennials Need Estate Planning

Despite the popular perception of millennials as financially irresponsible putty in the hands of the avocado toast lobby, most millennials are actually pretty good with their money. Millennials are actually ahead of earlier generations in terms of understanding the need to save. Believe it or not, more millennials are passionate about creating financial security (84%) than are passionate about raising good children (60%).

Even though millennials may demonstrate financial aptitude, Estate Planning is still–unsurprisingly–a blind spot for young people. Estate Planning, which also includes designating financial and medical agents under power of attorney, is not a process reserved for graying seniors with millions of dollars of asset. Rather, it is a crucial step in adulthood and risk management, and it is a step that every young person should take.

Powers of Attorney

In the event of an unforeseeable accident, it is important that millennials (and everyone for that matter) have established a way to communicate their wishes for end-of-life medical care and delegate someone to be responsible for making decisions. After the age of 18, generally, parents no longer have the legal ability to make medical decisions on behalf of their children. By creating a living will and designating a medical agent under power of attorney, young people can untie the hands of their loved ones and enable someone they trust to execute their wishes.

Student Loan Debt

One of the reasons that young people are so conscientious about money is that the burden of student debt weighs heavily on many of them. What they may not know, however, is that student debt is not always automatically forgiven at death. While a few private lenders have policies that forgive debt in the event of death, this is not the norm. For many private student loans, responsibility transfers to a spouse or a parent if the lender is unable to pay.

No one wants to burden their family with their expensive debt. By doing some simple Estate Planning, young people can take the necessary precautionary steps to ensure that they don’t unwittingly charge their family with paying for their debt.

Assets

Another misconception that keeps young people from doing Estate Planning is the idea that they simply don’t have enough assets to justify doing so. This is not correct. First, as described above, Estate Planning involves much more than just a will to dispose of assets. Just as it is never too early to designate a financial and medical power of attorney, it is never too early to plan the allocation of assets. Many people never think about the distribution of their wealth (regardless of size) until they buy a house, or settle down to get married, or have a child. But no matter where they are in their financial journey, it makes sense to plan for the day when they will pass on their assets. This is especially true for people who expect that they will inherit wealth in the foreseeable future.

Digital Assets

Digital asset law is a new, developing, and largely uncharted area of law. Digital assets can include photos stored in iCloud, Facebook account, blogs, and cryptocurrency (Bitcoin, Ethereum, Litecoin, Etc.). When individuals try to allocate/plan for digital assets on their own, they don’t realize that they are running up against lengthy and detailed terms of service agreements. There is an entire legal regime in Colorado that actually controls the ability to access digital assets during incapacity and after death called the Revised Uniform Access to Digital Assets Act (RUFADAA).

A licensed estate planning attorney can help you come up with a comprehensive plan to address the distribution of your wealth, liabilities, digital assets, and more. In addition, an attorney can help you to designate agents under medical and financial powers of attorney. These are services that young people are in need of. Everyone deserves the peace, regardless of age of wealth, of knowing that their affairs will be taken care of when they cannot take care of them themselves.

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Smart Contracts are the Future of Law

Someday our contracts will be nothing more than software code. To stay relevant, lawyers may have to become software coders. Do you think that lawyers are prepared for this? Click here to learn more.

Don’t Think You Need A Digital Asset Estate Plan? Think Again.

The nature of property ownership has, like so much else, been revolutionized in the age of the internet. For less than 50 years, people have owned assets that exist only on a computer server. Some individuals have realized tremendous profits from these types of assets, which has only been made possible by such technological innovations. Recently, for example, a player of the video game Second Life flipped a piece of the game’s virtual real estate for a cool six-figure profit.

The law moves slowly. Before our legal system can deliver justice to the digital world with the same efficiency as it does in more well-established areas, there will inevitably be stories that illustrate the fact that the law lags behind societal changes.

One such story is that of Peggy Bush, a widow who wanted to play a card game on her late husband’s iPad. She could unlock the iPad but didn’t know that her husband had a second password for his Apple ID, which was needed to access his app purchases. Peggy called Apple expecting to resolve the issue quickly, only to be told that she would need to come back with a court order before Apple would reset the password for the account. Peggy was especially irritated because she had been able to transfer the title of the house and the car using only a death certificate and her husband’s will. However, she could not access her husband’s apps…

In addition to the practical uses of family member’s old accounts, social media presence, and other internet profiles, these Digital Assets hold great sentimental value to the family and friends of the recently deceased. In 2013, Eric Rash, the son of Ricky and Diane Rash, committed suicide. Searching for answers and seeking to preserve the memory of their son, the parents sought access to his Facebook account. Facebook denied their request.

This rejection sent Ricky and Diane Rash on a quest to change the legislation surrounding parental access to social media accounts. Their campaign was successful, and Virginia signed into law an act allowing for parents to generally have access to their children’s Digital Assets. Virginia is only one state, and in the majority jurisdictions, parents are not guaranteed access to their children’s online accounts.

Like the Bushes and the Rashes, the parents of Justin Ellsworth, a marine killed in action, tried to access their son’s Yahoo email account after his death. Only after a costly and time-consuming legal process, did the courts order that Yahoo must grant access to Justin Ellsworth’s parents.

All of these cases underscore the uncertainty that surrounds the access to a decedent’s Digital Assets. Legislation such as the Revised Uniform Fiduciary Access to Digital Access Act (“RUFADAA”), which was adopted in Colorado in June of 2016, attempts to pull the legal system into modernity, but confusion and costly legal proceedings are still the norm for families trying to gain access to their family member’s Digital Assets after their death.

In order to avoid the chaos of accessing a deceased’s Digital Assets, with the assistance of a licensed attorney, you can plan ahead with a comprehensive digital estate plan that makes your wishes clear. Whether you want your family to be able to access your online accounts or not, your decision regarding your own property should be yours. Without a plan, that decision is likely to be made in the hands of a court.

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Child Support Awareness Month

August is National Child Support Awareness Month, and a good reminder to reflect on any statutory or case law updates, changes in your own life that may make modification of any child support amount due appropriate, and whether there are any child support arrearages that need to be taken care of.

Statutory Update. For the first time in over 25 years, the Virginia state legislature has updated the child support guidelines (Virginia Code section 20-108.2). The older version, passed in 1988, provided a table of child support figures using the parents’ combined gross income of up to $10,000 per month; the new version, which went into effect July 1, 2014, increased the table to include child support figures for combined gross incomes of up to $35,000 per month. The legislature also made slight revisions to the child support figures previously provided for the other income levels: for parents earning a combined gross income of under a few thousand dollars per month, the monthly child support figure has likely gone down; for people earning a combined gross income around $5,000 to $10,000 per month the child support guidelines figure has changed very minimally; and for those earning a combined gross income of over $10,000 per month, the child support guideline figure has increased notably. If your child support figure has greatly increased or decreased, you may be able to use the change to the statute as a “material change” and ask the court to change your child support figure to the updated amount.

Child Support Modification. Child support is inherently modifiable for a material change in circumstances warranting a change. A “material change” can include a change in income of either parent, a change in health insurance premium or child care costs, the birth or emancipation of other children, a change in custody or visitation, a change in the child support guidelines, or any combination of the aforementioned. For example, if the payor’s income has decreased, the recipient’s income has increased, and the parents’ combined gross monthly income is over $15,000, there is likely a material change and the court may modify a previous contract or child support order. This month, try to reflect on the time that has passed since the last child support order and determine if there has been a material change that would impact the amount of child support due. Modifications may be retroactive, but only to the date of the filing seeking a modification of support – so if you think your child support amount should be increased or decreased, you should see an attorney about filing a motion for modification sooner rather than later.

Arrearages. A child support order creates a judgment as a matter of law – which means interest automatically accrues each month. Further, even if a child emancipates, any arrearage owed for that child is still due until paid off. In the case of an arrearage, an attorney may bring a suit asking the Court to order garnishment of the payor’s check, revoke any professional license issued by Virginia, or use its powers of contempt to compel compliance with the child support order (up to and including jail). In addition to those remedies, the Department of Child Support Enforcement (DCSE), a state agency, can work directly with the state to suspend a payor’s drivers license, work with the federal government to intercept federal tax returns and use them towards any arrearage(s), and work with their sister agencies in other states in cases where the payor and recipient are not located in the same state. If you are a payor of child support and are behind – you should use this month to reflect on how to pay off the past-due amount and get back on track as soon as possible; if you cannot afford your child support payment, you should see an attorney about whether a modification is possible. If you are the recipient of child support and there is an arrearage, you may want to consult an attorney about the best way to move forward in getting the arrearage paid – whether through an attorney, DCSE, or a combination.