In a time when even verifiable (albeit inconvenient) news is branded “fake”, it comes as reassuring that even fake news can carry value. In 2016, fake news circulated that actor Bruce Willis was suing Apple, Inc. for the right to bequest his iTunes library to his children. The story ignored the fact that most children want nothing to do with their parents’ music, or that Apple’s music service allows unlimited streaming of virtually every album ever recorded for $15 a month (or that Bruce Willis’s children would have no problem coming up with that amount). It did hit on this bit of truth, though, we don’t own the music we download from iTunes, even if we pay $.99 for the song. Instead, we own a license to listen to that music and to make digital copies for our own use, but not the right to transfer ownership to a third party. 

The story also served to remind that we live in a very different world than we did even ten years ago: record collections are largely a thing of the past. Likewise, hand-written letters have been replaced by emails, text messages and Facebook messenger. Photo albums and slides are gone, and sites like Instagram and Flickr now contain the evidence of our family vacations, birthdays, weddings, graduations and pets. In our office, a great deal of our communication is sent by email, even as a way of sending PDF images of typed letters and attachments. Every document received or produced is saved digitally and securely saved.  

The way all of us communicate, keep records and preserve personal memories often incorporates online service providers, like mobile banking, Google, Yahoo, Facebook, TikTok and YouTube, and each of those service providers requires our agreement to certain terms of service. For the most part, we ignore what those agreements say and rush to check the box to accept them. And, for the most part, our quick acceptance doesn’t have much effect on how we get to use those services ourselves.

But problems often arise when others attempt to access the information we’ve stored online. For example, the service agreements often prohibit the release of password information that would give our agents and personal representatives access to our emails, financial records, and social media accounts. Without account access, those people can’t control online banking, salvage valuable intellectual property, close social media accounts after our deaths, or renew domain names that might be critical to the success of a business. Those complications can result in missed payments, over-drawn accounts, and lost assets. The fact that an agent or personal representative (a fiduciary) is acting under general authority granted by the account owner does not matter.

Wisconsin’s Digital Property Act (WDPA), however, provides that custodians of an individual’s digital property must provide fiduciaries access to that digital property, provided that certain conditions are met. The law does not act by default. Instead, the owners of the digital property must opt to activate the law’s protections by including specific language in their Power of Attorney documents and Will. Doing so will not provide a fiduciary unlimited access to digital property; instead, the law requires a custodian of digital property to provide the fiduciary just enough access to tackle the job at hand. In fact, if an online resource, like Facebook’s Legacy Contact, gives your fiduciary the necessary access, the online resource will take priority. And, the law’s authorizing language, to be included in Powers of Attorney and Wills, can be modified to reflect the specific digital property a client needs to protect or access.

At Duxstad & Bestul, we’ve updated our General Durable Power of Attorney for Finances and Property, and our standard Last Will and Testament to include the language required by the WDPA. As noted, though, the language can be modified to address a client’s specific needs, so a discussion about those needs is just as important as the language itself. Beyond that, there are tips for gathering and maintaining records of user names, passwords and domain names that can be applied to each client’s unique circumstances.  

For clients with documents more than a couple years old, the unfortunate news is that those documents may need to be updated. But the changes involved to anything signed recently would likely involve less work and be affordable. For those with older documents, a discussion regarding digital property could take place within a broader review of your estate planning documents, which we recommend every 5 to 10 years.

If you believe you have digital property that your agent or personal representative may need to access on your behalf, give our office a call and arrange a time for a short discussion about your needs and how we can address those through updates to your estate planning documents. We continue to accommodate clients with telephone conferences and Zoom consultations, and handle document signings in a safe disinfected area.