Probate in Wisconsin has traditionally dealt with two kinds of property – the physical and the intangible. The latter, intangible, refers to assets like bank accounts or stocks that lack a physical form yet serve as a defined store of value.
These days there is another, distinct type of intangible property that we all possess in one form or another: digital property. This encompasses everything from your email to your iTunes account with thousands of downloaded songs and videos. Up until recently, figuring out what happened with your digital property upon death meant looking at the terms of service for every company with which you do business. In other words, Facebook may say one thing when it comes to whether or not your estate can access your profile post-death, while Google may say something completely different with respect to the fate of your Gmail account.
Understanding the Wisconsin Digital Property Act
In 2016, Gov. Scott Walker signed Wisconsin’s Digital Property Act (DPA) into law. The DPA represents an attempt to bring some sense of order to the chaos of the digital world. Here is a basic rundown of what the DPA does:
- The law defines a “custodian” as a company, such as an email provider or social network, that stores “digital property” on your behalf.
- You have the right to “allow or prohibit” disclosure of digital property to a “fiduciary” that you designate by will, power of attorney, or trust.
- If the custodian provides its own “online tool” to manage disclosure permissions, you may use it, and any choices you make using the tool will override a contrary direction in your will, power of attorney, or trust.
- The custodian’s terms of service cannot be used to override your choices.
- If you do not prohibit the disclosure of your digital property–or a court overrides your instructions–after you die, the custodian is required to provide the personal representative of your estate with a “catalogue of electronic communications” that you sent and received during your lifetime, together with any other “digital property” stored by the custodian. The custodian must also disclose the “contents” of any digital communications if directed by you or the court.
- You may also designate an agent, via a power of attorney, to access your digital property during your lifetime.
Note that the DPA does require your personal representative or agent to present certain documentation to the custodian before they may gain access to your digital property. And the custodian also has wide discretion to decide how to comply with a demand for access. The custodian may give “full access” to your account, but it may also opt to limit access to information “that is sufficient to perform the tasks with which the fiduciary or designated recipient is charged.”
A custodian is also not required to grant your estate a greater level of access than you had during your lifetime. For example, if a social media network does not allow you to access previously deleted messages, your estate will not be able to access them either.
Get Help from a Madison Trust Administration Lawyer
The estate lawyers of Krause Donovan Estate Law Partners, LLC practice law in the areas of Probate, Wills, Estate Planning, and Trusts. We assist clients in and around Madison, Wisconsin with all matters related to estate planning, trusts, and probate matters. Our dedicated attorneys will even make house calls if you are unable to come to our office.
To attend a free estate planning workshop or to receive our client planner to assess your estate planning mindset, contact our office by calling (608) 268-5751 or use our online contact form.