Where Life Meets the Law – Estate Planning
The Short Answer
A password list is useful, but it is not the same as legal authority to obtain or use an account. Illinois has separate rules for a fiduciary’s access to digital assets and for disclosure of the contents of private electronic communications. Your choices in a platform’s online tool can also override contrary directions in a will, trust, or power of attorney. A digital plan should address both your wishes and the lawful route for carrying them out. 755 ILCS 70/4; 755 ILCS 70/7.
The Human Story
A hypothetical situation: After a parent dies, the family needs a bill from an online account and photographs stored in the cloud. Someone knows where the password notebook is. No one knows which accounts the parent wanted shared, whether an online legacy setting was chosen, or who has authority to ask the provider for access.
At the same time, relatives may understandably want different things. One wants to preserve memories. Another wants the parent’s private messages left private. A plan that simply says “all passwords are in the drawer” does not answer either concern.
Digital planning is partly about convenience. It is also about consent, privacy, and distinguishing the account from the things it holds.
It may help to distinguish what loved ones need from what they might be curious to see. Access to a utility account could be necessary to keep a home running. Access to a lifetime of private messages is a different matter. Thoughtful digital planning recognizes that helpful administration and respect for privacy can coexist.
What Illinois Law Says
A password is not legal permission.
Illinois defines a digital asset as an electronic record in which a person has a right or interest; it does not automatically include an underlying asset merely because an electronic record refers to it. The statute recognizes fiduciaries including personal representatives, agents, guardians, and trustees. 755 ILCS 70/2.
Privacy choices matter.
A user may direct disclosure or nondisclosure through a qualifying platform online tool. If that tool lets the user modify or delete the direction at all times, its direction overrides a contrary instruction in an estate-planning record. Without such a tool direction, a user may give instructions in a will, trust, power of attorney, or other record. 755 ILCS 70/4.
The law distinguishes private communications content from a communications catalogue and other digital assets. For a deceased user, content disclosure to a personal representative requires the user’s consent or a court direction and the specified documentation. Other digital assets and the catalogue have a different disclosure rule, subject to a user’s prohibition, court direction, and proof requirements. 755 ILCS 70/7; 755 ILCS 70/8.
During life, an agent may obtain certain non-content assets under general or specific authority, but disclosure of communications content requires a power of attorney expressly granting that authority. 755 ILCS 70/10; 755 ILCS 70/9.
What Changes the Answer?
Decide what you want someone to do: find recurring bills, preserve photographs, close accounts, manage a business page, or read correspondence. Those are not identical requests. A person authorized to administer an estate may need account information without needing the contents of every private message.
Then check where you have already made a choice. A platform’s legacy or disclosure setting may matter more than an inconsistent sentence drafted years ago. Platform terms and federal law may also limit access, and Illinois law does not give a fiduciary rights beyond those the user had. 755 ILCS 70/4; 755 ILCS 70/5.
Keep the inventory secure. The useful record is often an account map—provider, purpose, where access information is stored, and whom to contact—rather than a password list passed among relatives.
Counsel’s Perspective
Drafting should separate three questions: who is the fiduciary, what disclosure did the user authorize, and what type of asset is requested? Section 4 establishes the priority of a qualifying online-tool direction over a contrary estate-planning record. A general digital-assets clause cannot safely be assumed to displace an inconsistent online designation. 755 ILCS 70/4.
For a deceased user, sections 7 and 8 establish different routes for communications content and non-content assets. For a living principal, sections 9 and 10 make the same distinction significant to power-of-attorney drafting: content requires express authority, while general authority can suffice for specified non-content disclosure unless otherwise limited. The request and supporting documentation remain material. 755 ILCS 70/7; 755 ILCS 70/8; 755 ILCS 70/9; 755 ILCS 70/10.
Finally, disclosure is not necessarily a login credential. A custodian may provide full access, limited access sufficient for the task, or a copy of accessible assets under the statutory procedure. Review the applicable terms and whether the fiduciary needs information, account control, or a preserved copy. Draft authorization around the client’s privacy choices rather than assuming maximal access is always desirable. 755 ILCS 70/6; 755 ILCS 70/5.
The Path Forward
Make a secure digital-asset inventory listing important accounts, what each is used for, where credentials are stored, and whether the provider has an online legacy or disclosure tool. Decide separately whether an agent or personal representative should receive private communications content.
Ask Joerika Stitt Esquire, LLC for an estate-plan update that coordinates those choices with your powers of attorney, will or trust, and the platform directions you actually use.
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This publication is for educational and informational purposes only and does not constitute legal advice or establish an attorney-client relationship.