There are quite a few sets of rules that affect your digital property, including federal privacy law, state probate law, and the law governing what requests for information custodians, such as Google, have to produce to. Additionally, there are multiple ways that a user of an account can either prohibit or allow disclosure of his/her account’s contents, such as through an online designation with the provider of the account, a trust or will, power of attorney, or an entirely separate consent instrument. What if a user has inconsistency between these disclosure options? Wisconsin’s Digital Property Act gives one of these options the final say – the “online tool.” [1]

An online tool is a setting that a custodian, like Google, provides to you which allows you, as the user, to “provide directions for disclosure or nondisclosure of digital property to a designated recipient”; it is separate and distinct from the terms of service, aka the “i agree to the terms and conditions” checkbox. [2]

1. Google’s Inactive Account Manager:

Google’s online tool is called the “Google Inactive Account Manager” and allows you to choose up to 10 people who can have access to your data after long periods of inactivity. You specify what the period of inactivity is in 3-month increments between 3-18 months. You can also specify which data your designated person/people have access to, including your log-in activity, calendar, Google Business Profile, Google Photos, Gmail, etc.

2. Facebook’s Legacy Contact:

Facebook’s Legacy Contact allows a user to convert their account to a memorialized profile or to permanently delete their account upon their passing. A memorialized profile has the word “Remembering” next to the user’s name and allows friends and family to share memorizes on the user’s page. The tool allows you to appoint a legacy contact who can accept friend requests, write a pinned post for your page (such as information for your memorial service), and request to delete your account, among other things.

If you choose to request that your account be permanently deleted upon your passing, you should share this information with your loved ones, as Facebook first needs proof of your death to do so. [3]

3. Apple’s Legacy Contacts:

Apple allows users to select multiple people as their legacy contacts who are then granted access to user-specified information, such as the user’s photos, messages, files, notes, apps, etc. When you choose someone as your legacy contact, they are then given an access key. Your legacy contact is not required to have an Apple account, however if they do, they may “accept” the key and digitally store a copy of it in their Apple account settings.

To activate the key, your contact must have a copy of your death certificate and the key, which then must be sent to Apple for verification. Upon verification, Apple will send your legacy contact their own special account that they can then use to access your designated information. Your information is then automatically deleted from the legacy contact’s account after 3 years from the date the account was activated. [4]

4. Microsoft:

Interestingly, Microsoft does not offer an online tool. Microsoft states that if you know the decedent’s log-in credentials, you may use those to cancel the decedent’s subscriptions and account. If you do not know the decedent’s log-in credentials, then the account is automatically deleted after two years of inactivity. If you would like to request a decedent’s digital property held by Microsoft, then you must serve the company with a court order or subpoena, which may or may not result in the company producing the decedent’s digital property. [5]

Schedule a consultation with Wynn at Law, LLC today to discuss the estate planning process

Planning for the disposition of your digital property upon your passing is only one aspect of the estate planning process. For assistance with ensuring that you have a comprehensive estate plan in place, contact Wynn at Law, LLC today for a consultation at 262-725-0175 or visit our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.

[1] Wis. Stat. 711.04

[2] Wis. Stat. 711.03(18)

[3] https://www.facebook.com/help/103897939701143?helpref=faq_content

[4] https://support.apple.com/en-us/102631

[5] https://support.microsoft.com/en-us/account-billing/accessing-outlook-com-onedrive-and-other-microsoft-services-when-someone-has-died-ebbd2860-917e-4b39-9913-212362da6b2f

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1. Naming Minors as a Direct Beneficiary of a Financial Account

Naming a minor child as a direct Payable On Death (POD) beneficiary of a financial account or as an insurance beneficiary could result in the money either going directly to the child’s guardian, or to the child the minute , he or she turns 18. Many 18-year-olds who come into large sums of money spend it in ways that may not be in their best interest or a child’s guardian may not be the person you want controlling the money either (i.e. divorced spouses). Parents or grandparents of minors should consider other estate planning tools, such as a trust, to avoid this situation.

2. Adding a Child as a Joint User to a Bank Account

Aging parents often find it advantageous to add one of their grown children to their bank accounts as a co-owner/ joint user so that their child can handle their finances. When the aging parent passes, the child on the bank account now owns those funds 100%. Parents with multiple children may not have anticipated this or assumed that the child would voluntarily share the funds with their siblings. In most cases, the child on the bank account does not share the funds with their siblings, and legally, they have no obligation to do so. Even if that child were to share the funds, unintended gift tax consequences can arise. Aging parents in this situation should consider using a Financial Power of Attorney to allow a child to manage their finances during their lifetime.

3. Improper Spousal Ownership of Real Estate

What happens in Wisconsin to real estate when one spouse passes? Does the surviving spouse automatically own the real estate? The answer lies in the way the spouses took ownership on the deed and the type of real estate owned. Simply having both spouses listed on the deed as owners (such as “Jack Doe and Jane Doe”) is not enough to avoid probate in most cases. Special consideration must be taken when titling real estate to ensure that a probate is not required between the spouses when one spouse passes. Having an attorney review your deed and fix any unintended titling mistakes can help prevent costly mistakes that can arise with what is often our biggest asset – the home! An attorney can also advise on options for passing down real estate when both spouses pass and common mistakes that can arise with these transfers and how to avoid them.

Schedule a consultation with Wynn at Law, LLC today to discuss the estate planning process

Whether you already have an estate plan in place and need to review it, or you would like to start from scratch, our attorneys are here to assist you. Contact Wynn at Law, LLC today for a consultation at 262-725-0175 or visit our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.

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