Digital Assets and Your Estate Plan in Illinois

What counts as a digital asset

The Act defines a digital asset as an electronic record in which a person has a right or interest. It leaves out an underlying asset unless that asset is itself an electronic record. Think email accounts, cloud photos, social media, online banking records, cryptocurrency records and files stored on a server.

The company that holds the account is called a custodian. The people who may ask the custodian for access are called fiduciaries: an executor or other personal representative, a trustee, a guardian, or an agent under a power of attorney.

Why you cannot assume your family gets in

The Act does not hand a fiduciary any new rights. It says the fiduciary or the person you designate gets no more than you had, and it leaves your terms of service agreements in place. If you have not given directions, the company's terms and federal law can limit or end access.

Under 755 ILCS 70/6, the company may choose how much access to give: full access to the account, partial access enough to do the task, or a copy of the digital asset. A family without a clear paper trail can lose accounts and photos that mattered.

Content of messages is protected more

The law treats the content of electronic communications, such as the text of emails, with extra care. Under section 7, a company must disclose that content to the personal representative of a deceased user only if the user consented, or a court orders it. The representative must give the company a written request, an official copy of the death certificate, an official copy of the letters of office or a court order, and a copy of the will, trust, power of attorney or other record that shows the user's consent.

Without consent, the family may get a catalogue of who you wrote to and when, and the assets other than the messages, but not the messages themselves. Section 8 says that other digital assets and the catalogue go to the representative unless the user prohibited disclosure or a court directs otherwise.

Powers of attorney

The same split applies while you are alive. Under section 9, an agent under a power of attorney can get the content of your electronic communications only if the power of attorney expressly gives that authority. A general power of attorney that says nothing about it may not be enough. See power of attorney for property.

The online tool comes first

Some companies give you a tool inside your account to name who can see your data after your death. The Act calls it an online tool. If the tool lets you change or delete your direction at any time, then what you set there overrides a different direction in your will, trust or power of attorney. That makes a decision made in a settings page more powerful than a paper plan you made years ago, so keep the two in sync.

Trusts and guardians

The Act also covers a trustee. When a trustee who is not the original account holder asks a company for the content of communications held in a trust account, section 12 calls for an official copy of the trust instrument that includes consent to that disclosure, plus a sworn statement that the trust exists. Section 13 sets a similar path for the other digital assets. A guardian for a person with a disability needs a court order that gives authority over the digital assets, under section 14.

These details are why the wording of your documents matters. A short clause that names your digital assets and says what your fiduciary may do gives the company something clear to follow, and it spares your family a trip to court.

What to put in your plan

• Add digital assets to your will or trust, naming who can access and what they can see.
• Say in the document whether the content of electronic communications may be disclosed.
• Use each company's online tool, where one exists, and write down what you chose.
• Keep a secure list of accounts and where the access information is kept. Keep passwords out of the will itself, since other people may read it.
• Name a person you trust to handle accounts, and name a backup.

The will and trust pages explain where this language goes. A work account or a device your employer owns is different. The Act does not apply to an employer's digital assets that an employee uses in the ordinary course of business.

A realistic example of what goes wrong

A parent dies with years of family photos in a cloud account and no direction about it. The executor asks the company for access. The company asks for the death certificate, the letters of office and proof that the parent consented to disclosure. If the parent never wrote a consent, the company can hand over a list of what exists but not the content of messages without a court order. A single paragraph in a will could have settled the question.

Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.