(Editor’s Note: This article by Kaitlin Hackett appears in the latest issue of the NJSBA Young Lawyers Division’s Dictum. YLD members can read the full issue here.)
Preparing a Last Will and Testament will ensure that your assets, tangible or otherwise, will be distributed to your intended beneficiaries. However, in the age of technology when everyone has a smartphone, have you ever wondered what happens to the information stored on your iPhone after you die?
We are all told to protect our Apple products with a passcode only we know. These passcodes are four to six numbers long but can expand to being as un-guessable as the owner would like. Sometimes, the passcode is so secure even the owner is unsure of the correct answer. So, once your will is probated and your executor gathers your tangible personal property, what do they do with your locked iPhone, Mac computer, or iPad?
Of course, there is always the option to factory reset the device. However, what happens to your Candy Crush progress? What happens to the note you always left open to remind your friend of that new restaurant? How does your loved one access precious pictures you stored for years?
The New Jersey Legislature has addressed these questions with the Uniform Fiduciary Access to Digital Assets Act. Sections 7 and 8 of the act directs a “person that carries, maintains, processes, receives, or stores a digital asset of a user” (a custodian), to disclose the content of an electronic communication sent or received by the decedent to the executor if the executor gives the custodian the following documents:
a. a written request for disclosure in physical or electronic form;
b. a copy of the death certificate;
c. a certificate evidencing the appointment of the representative or a small-estate affidavit; and
d. a copy of the decedent's will, trust, power of attorney, or other record evidencing the decedent's consent to disclosure of the content of electronic communications.
Then, in response to this burdensome disclosure by the executor or administrator, the custodian may require more information to be presented, or even a Court order. To be clear, the Court can issue this type of order whether or not the decedent consented to access, but if the Court is not petitioned or denies issuance of this type of order, the decedent must have consented to access. As expected, gaining consent from someone who has died is difficult.
For a simpler approach, Apple has created a “legacy contact” that easily solves the locked Apple products question above. The legacy contact can be used on an iPhone, iPad, iPod touch, and Mac computer.
Your legacy contact gives one person (or more if you choose) a way to access data from your Apple ID account after your death. According to Apple, the legacy contact can access photos, messages, notes, files, apps you've downloaded, device backups, and more.
To add a legacy contact, you must be operating on a newer version of software, have two-factor authentication turned on for your Apple ID, and be over the age of 13 years old (in the United States, people under 13 cannot create an Apple ID).
On your iPhone, iPad, or iPod touch, first open your settings application. Then, tap your name at the top of the screen with either the gray bubble with your initials next to it, or a picture you chose as your Apple ID picture. Once your Apple ID profile is open, tap password and security. Toward the bottom of this screen, tap legacy contact.
Once you have added a contact, you will then generate an access key for your legacy contact to use. This key unlocks all of your devices that use your Apple ID and gives your legacy contact access to your data. If your chosen legacy contact is not an Apple user, or if your legacy contact is not the most organized, you can print out the access key and keep it with your estate planning documents for them.
The difference between leaving behind a legacy contact code versus your actual device passcode with your estate planning documents include, but are not limited to, the following:
a. The legacy contact code grants access to all of your Apple devices with the same code used one time without the risk of being locked out afterward due to incorrect password usage;
b. Your legacy contact then accesses your devices with a separate Apple ID from yours, thereby disabling your old Apple ID to ensure no one can hack into that account;
c. Your legacy contact cannot access in-app purchases or licensed media on your device; and
d. Your legacy contact cannot access your Apple ID payment information or other keychain data saved on your devices, like other passwords, payment information, etc.
Do not worry though! This access key cannot be used until your death is verified with Apple – your legacy contact must send Apple your death certificate and verify their own identity. Once verified, your Apple ID will no longer work, and your devices will be available for your legacy contact to unlock using your access key. Then, your legacy contact has up to three years to access your data. After three years from the unlock, your account and their legacy contact account is permanently deleted.
A legacy contact can also always be removed by you during your lifetime without notifying the person.
While an estate planning attorney can prepare your estate planning documents, they cannot hack your iPhone for your loved ones. A legacy contact, however, allows you to control who can access your data after your death.