Technology—Probate

Digital Planning on iOS

Technology—Probate Editor: Ross E. Bruch, Brown Brothers Harriman & Co., One Logan Square, Philadelphia, PA 19103-6996, ross. bruch@bbh.com. Technology—Probate provides information on current technology and microcomputer software of interest in the trust and estate area. The editors of Probate & Property welcome information and suggestions from readers.

Over the last decade, digital assets have become an increasingly prevalent aspect of estate planning. Evidence of this can be demonstrated by the nearly ubiquitous adoption of “digital asset” clauses in most newly drafted wills. While not everyone owns cryptocurrency (or has even heard of it), most individuals have various forms of email accounts, online profiles, and cloud-based storage that could be lost to the void without appropriate planning. Much of the rise in digital asset planning over the last several years was spurred on by the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which has been adopted with some variations in most US states and territories. Among other things, RUFADAA permits an individual to use an “online tool,” which is an account-specific feature that an online custodian (e.g., Google, Facebook) may offer to its customers that enables them to provide directions for disclosure or nondisclosure of digital assets to a designated person. Any assets that are not addressed with an online tool are subject to the terms of a testator’s estate planning documents. And, if the decedent does not have such documents or they lack the above-mentioned digital asset provisions, the estate’s access to the digital assets and information are generally subject to the custodian’s Terms of Service Agreement (i.e., the mostly unread terms that nearly every platform asks users to agree to before allowing them onto their platform). These Terms of Service Agreements are generally unhelpful in the estate administration process.

Online tools are far from perfect. They are not uniform in their application, they have the potential to disrupt complex estate plans, and there is no easy way to search for the existence of online tools after a decedent’s passing. However, the biggest problem is that there has been little adoption by major technology providers. For several years, Google’s Inactive Account Manager and Facebook’s Legacy Contact tools (each of which had its own quirks and drawbacks) stood out as the only relevant online tools. That changed earlier this year when Apple announced the launch of its online tool named “Digital Legacy.” In short, Apple’s Digital Legacy tool allows Apple users to name one or more designated recipients or “Legacy Contacts” who will be able to access some of the decedent’s iOS data like photos, videos, notes, and iCloud email accounts after the account owner dies, either by viewing the data through iCloud.com or by downloading a copy. But iCloud Keychain, payment information, subscriptions, and licensed media will not be accessible to the Legacy Contact.

Digital Legacy was previewed at this year’s Worldwide Digital Conference or WWDC (Apple’s annual event to showcase its new software and technology) as an added feature to the iCloud under the most recent Apple update, iOS 15. As Mike Abbott, Vice President of Apple Cloud Services, said at the WWDC announcement, “We don’t often think about it, but it’s important that we can easily pass down information to family members or friends when we pass away. So you’ll now be able to add people to your account as Legacy Contacts. So when you’re gone, they can request access, and your information can be passed along quickly and easily.”

Planning Implications

For many tech enthusiasts, this feature was likely far less interesting than other updates announced at WWDC. However, Digital Legacy will probably have significant implications for estate planners and their clients.

First, while some may doubt the future of online tools, it was essential for Apple to get behind the idea if online tools were to succeed. If, instead, Apple chose to ignore the need for an online tool or find a different solution entirely, it would bring to question whether RUFADAA’s hierarchy was correctly established. Apple’s endorsement of online tools confirms that online tools will likely remain relevant for years to come, and it is hoped with further improvement.

Second, other technology providers may have been waiting for Apple’s endorsement before choosing to offer an online tool of their own. Now that they have it, these companies may be willing to invest the time and money building this feature into their systems. Additionally, more tech companies may begin to offer their version of an online tool if they perceive a general user expectation that this feature should be universally available.

Third, given how disruptive online tools can be to an estate plan (like a designated beneficiary form that clients occasionally forget to alert their counsel about), it has become essential that attorneys ask their clients about online tool usage and digital asset ownership as part of their inventory requests and check-ups. Apple’s entry into online tools reinforces this. Although most clients do not expect their attorneys to be IT experts, estate planners should be proficient in the subject matter to ensure they collect the right information from their clients and answer their client’s basic technology questions.

Digital Legacy Setup and Legacy Contact Access

Whether you are turning on Digital Legacy for yourself or walking your clients through the process, here’s how to set it up on an iPhone, iPad, etc.:

• After downloading and installing iOS 15 (or any later version), open “Settings” and tap on your name at the top of the screen.

• Choose “Password and Security,” tap “Legacy Contact,” and then tap “Add Legacy Contact.”

• Enter your Apple ID password.

• Choose the designated Legacy Contacts, then tap “Continue.”

• This will generate an Access Key—a security code that your Legacy Contacts will be required to upload when they request data from Apple. Apple suggests that the account owner store a copy of the Access Key and simultaneously share it with Legacy Contacts.

Designated Legacy Contacts can request the decedent’s data from Apple at its dedicated digital legacy website (www.digital-legacy.apple.com). They will only have a limited time to do so, however, before Apple permanently deletes the data (Apple has not yet announced the timeframe as of the date of this writing). Legacy Contacts will need to provide a death certificate and the Access Key that the decedent created. Apple then needs to approve the request, though it is unclear whether it will be done manually by an Apple employee or by another method. Following Apple’s approval, Legacy Contacts can download a copy of the decedent’s data, and the Activation Lock will be removed from all of their Apple devices.

Important Features

A critical difference between Digital Legacy and Google’s Inactive Account Manager is automation. Google’s online tool requires a user’s account to become inactive for a designated time before its protocol delivers designated individuals access to a decedent’s account. The advantage of this method is that no additional paperwork or transactions need to occur to trigger the release of data—the decedent’s failure to log on to his Google account is the only relevant factor. Of course, this methodology could lead to false positives during the account owner’s lifetime (e.g., the owner simply does not log into a Google account for a while), as well as false negatives after the account owner dies (e.g., the decedent’s surviving spouse or personal representative continues to log into the decedent’s account after their death, thus never allowing the inactivity clock to lapse).

Apple chose a different approach by requiring the Legacy Contact to provide an Access Key and the decedent’s death certificate to Apple. The added step of requiring both items is a welcome security feature as it will limit fraudulent access to the user’s account (both during the user’s life and after death). It is currently unclear whether Apple will require a certified copy of a decedent’s death certificate or whether a scan or photograph of the certificate will be sufficient. Apple has not provided much insight into this question. As of the date of this writing, Apple’s Digital Legacy website merely says, “proof of death documents are required to delete a decedent’s Apple ID….” For the time being, the Legacy Contact will presumably need to supply Apple with a physical copy. Still, it will be interesting to watch if Apple can securely “digitize” the process and provide a welcome improvement to the current practice.

Conclusion

Apple’s Digital Legacy is a welcome addition to the catalog of online tools. Hopefully, this will encourage other tech companies to develop their own online tools, giving users better opportunities to transfer essential data to loved ones after their death. Between Apple’s online tool addition and others currently being developed, the digital asset management and planning process will continue to evolve in the coming years. It is essential for estate planners to be aware of these changes, to know the right questions to ask, and to know the best answers to provide to their clients. n

Technology—Probate Editor: Ross E. Bruch, Brown Brothers Harriman & Co., One Logan Square, Philadelphia, PA 19103-6996, ross. bruch@bbh.com.