My Loved One Died - How Can I Obtain Rights to their Digital Assets?

By: Janet LeAnnais, estate planning attorney

When you pass away in Michigan, your digital pictures and assets aren’t automatically given to your loved ones. Under the Michigan Fiduciary Access to Digital Assets Act, these items belong to your estate, but without proper planning, your family may be permanently locked out by federal privacy laws or strict platform Terms of Service.

People are reliant on their phones these days. 

We aren’t living in the 80s or 90s when people spent time scrapbooking or having photo albums lying around. Today, much of our personal history is now stored in clouds, sometimes on multiple clouds. When someone dies, these cloud accounts, such as for Google, Apple, Microsoft, or Facebook, aren’t easily handed over to the decedent’s survivors because these accounts are heavily protected by privacy laws.

In Michigan, digital assets are split into two separate categories. 

The Fiduciary Access to Digital Assets Act gives your personal representative, trustee, or power of attorney legal authority to manage your digital estate. However, the law divides digital assets into two categories: "catalogs" (like a log of who you emailed) and "content" (the actual photos, videos, and emails). The law clearly provides that the fiduciary is entitled to the catalog of data. However, a fiduciary generally needs the decedent’s express permission or a court order to access the actual contents. Courts can be extremely reluctant to override the decedent’s privacy and presumed wishes when there’s no evidence of such express permission. The Court process can become costly.

You can take proactive steps to enable your loved ones to access your digital data.

The easiest thing to do is to leave your loved ones a list of your various passwords, and keep an ongoing list of all your online accounts, cloud storage, and cryptocurrency holdings.

In the absence of such a list, there are also online tools that can bypass the long, sometimes expensive probate process. For instance, you can review your Settings to name someone on various websites like Google, Apple, or Facebook, who can access or manage your account after your death, including obtaining those much desired photos.

Another way to ensure your loved ones have access to your photos would be to systematically back them up to a separate hard drive that is not tied to an online account.

Other ways to ensure post-death access to your digital assets include giving  fiduciaries, who are named in Powers of Attorney, Wills, or Trusts, the power to deal with your digital assets, which would be the express consent needed to be proven to the Court in a proceeding to allow the fiduciary access to the assets.

What Happens if the Decedent Does Nothing

Without an estate plan or taking the previous mentioned actionable steps, loved ones face the "Terms of Service" hurdle. Big tech companies are known for strict privacy policies, and in many cases, if a device login or cloud password isn't known, those family pictures and memories could be permanently deleted or locked away forever.  

Protect Your Digital Legacy with Proper Estate Planning

If you have questions about protecting digital assets, accessing a loved one's online accounts after death, or creating an estate plan that preserves important family memories, our experienced estate planning attorneys in Ann Arbor can help. Our estate planning and probate team can guide you through Michigan's laws regarding digital assets, wills, trusts, powers of attorney, and probate administration to help ensure your wishes are honored and your loved ones have access to the accounts, photos, and records that matter most. Schedule a consultation and discuss your estate planning needs today!