How Will My Agent Know Where My Property Is – and How to Access It? The Maryland Fiduciary Access to Digital Assets Act, Digital Storage Options, Safe Deposit Boxes, and Good Old Fashioned Record-Keeping

November 7, 2018

As recently as this morning, I experienced a headache common to all of us living in the now almost-entirely-digital age.  I went to log on to my email from a different “platform” than I normally use (an old laptop, rather than my phone where I normally check email, and on which my email password is saved).  I typed in what I thought was my password.  No.  I tried a variation that I have sometimes used as a password.  No.  I tried variations on the variation that I have sometimes used.  No.  I cursed at the reality of the fact that I KNEW my password until I had to change it several weeks ago because of the security requirements that lead to a new password being necessary every few months.  Finally, I gave in and created a new password.  Which I likely will not remember, because now I am so many variations past my original password that my brain cannot contain which variation is the current one to access this particular account.

Sound familiar?

A friend who used to work at Google said that people would call in all the time, asking for the “help desk” to get them back into their email, from which they were locked out without any memory of their password, or the answers to their security questions, or access to the old phone number or alternative email where the “access your email” link would be automatically sent by Google in case of such dire straits.  For these poor souls, it was unhappy news to hear from my friend that Google does not have a help desk, and that there is, in such a situation, no way to get back into their email.

Given these real-world examples of the complications faced by us as the OWNERS of these digital accounts, how in the world can we expect our appointed Agents/Fiduciaries to access our digital accounts in the event of our incapacity or death?  Particularly if we don’t give them some mechanism for knowing where our digital assets are, or how to access them?  It is common now to keep all of our important information on our laptops or desktop computers – but if that device is password-protected or otherwise locked, and no one other than you has the information to access it – how will your appointed Agent/Fiduciary be able to access your computer, your email, your Facebook, your digital photograph storage service, your Amazon account, etc., etc.?

In recent years, the law has finally started to catch up with the reality of our digital world – though in typical, behind-on-the-curve fashion (the law is always a few years delayed on the timeline of mainstream culture).  In 2016, the Maryland legislature passed the Maryland Fiduciary Access to Digital Assets Act, codifying the right of a digital account user to broadly allow or prohibit access to that user’s digital accounts to a Fiduciary by way of a Power of Attorney, Will, or Trust.  Prior to the passage of this Act, such authority (for your Fiduciary to access your digital accounts) was dependent upon your completion of each and every website’s own Terms of Service – something I seriously doubt many of us thought or knew to do (I certainly did not).

But this is an imperfect solution, in and of itself.  The issue of how our appointed Agents/Fiduciaries might access our digital assets presumes that they will know what our digital assets are – not to mention any and all of our other, non-digital information.  The starting point is to imagine how anyone other than you will possibly know what you have, and where you have it (where do you have accounts?  With whom do you have life insurance?  Who is your doctor, financial advisor, estate planning attorney, etc.?).

A common approach in the past was to keep important documents and information in a safe deposit box.  But what if no one but you has access to it, and you become incapacitated or die?  Unbeknownst to most people is that a safe deposit box is only accessible by signatories/authorized users.  A Power of Attorney may or may not be recognized by your bank – and even if the bank does recognize the authority of your Power of Attorney, the bank may not recognize the authority of your Power of Attorney to access your safe deposit box.  And, after your death, when your Power of Attorney no longer has any authority or validity, NO ONE has access to your safe deposit box UNTIL a probate estate is open and letters of administration are given to the Personal Representative (sometimes called the Executor) of your Estate.  Which can lead to quite a circular mess if your Will, which should be filed to open your Estate, and which sets forth who you wish to be appointed as your Personal Representative, is housed in your safe deposit box. Or, even worse, if you established a Revocable Living Trust in order to avoid the opening of a probate Estate, but now,  a probate Estate must be opened in order to gain access to your safe deposit box.  Many a Trusts and Estates attorney has horror stories to share about the mess caused by important documents being stored in a safe deposit box that only one or two people have access to…

So what is one to do?

One client with whom I worked made it a pet project of hers, to put together a notebook of all of the information her children or siblings might need to know in the event she becomes incapacitated or after her death.  She put all passwords, all contact information (for her estate planning attorney and her financial advisor and her doctors, etc.), all asset type and financial institution information, EVERYTHING into this notebook.  Now, all that her children and siblings need to know is where that notebook is being kept.  Of course, the impetus is on her to keep this information updated.

For some, this old-fashioned recordkeeping is uncomfortable, whether because it is tedious, or considered too insecure.  As an alternative, there are various digital storage options on the market now – companies, such as DocuBank and Everplans, that provide the service of a “digital filing cabinet” for all of your important paperwork and information.  Of course, this method has its imperfections, too.  Ultimately, there is an argument to be made for a hybrid approach, for storing your important information in a variety of ways.  One of the best methods for ensuring that your important information is known and available to those who may need it to act on your behalf is to have an estate planning attorney who is familiar with you and your asset information – and, even better, to have a financial advisor and a CPA, too – that is, to have your own personal team of advisors.

There is a fine line between keeping our private information private and secure – and keeping it so private and secure that no one else is able to access it when we actually need them to.  We welcome you to discuss this particular challenge with us, and we urge the importance of keeping your information updated, wherever and however you choose to keep it.