Digital Assets in Estate Administration
Digital assets are many things: music, videos, medical records, tax documents, financial records, bank statements, photographs, whether stored on a computer hard drive, online, and/or in the Cloud. Digital assets can also include accounts on social media websites, such as Facebook, Twitter, LinkedIn, Pinterest, Tumblr, or Instagram. Digital assets are also email accounts, such as at Gmail, Yahoo, and Hotmail. Or accounts at online merchant websites, such as eBay, PayPal, and Amazon.
What happens when the owner and/or intended recipient of digital assets is no longer living or no longer able to access them himself or herself because of a lack of capacity? Who then can get access to digital assets?
Terms of Service Agreements
Terms of Service Agreements are the agreements between a service provider and a person who wants to use that service. Most of us simply click through the Terms of Service Agreement without ever looking at the terms. However, the terms of these Agreements dictate what rights the user has to the digital assets and access to the digital assets.
As for confidentiality and disclosure of an account holder’s information (i.e., granting access to others to access the account holder’s digital assets), all Terms of Service agreements provide that privacy and privacy disclosures will be subject to the relevant federal and state laws.
Some Considerations
If a fiduciary accesses someone’s online subscription account, such as Facebook, Google Plus, Twitter, without the proper authorizations, such fiduciary could be in violation of federal and/or state law.
Revised Uniform Fiduciary Access to Digital Assets Act
Most states have passed a version of the Revised Uniform Fiduciary Access to Digital Assets Act. Generally, this Act grants fiduciaries the legal authority to manage and access an account holder’s digital assets and electronic communications and dictates how service providers must deal with the fiduciaries of their account holders. The Act addresses the following types of fiduciaries: executors or personal representatives of a decedent’s estate, guardians, agents acting under a power of attorney, and trustees.
Estate Planning
With the enactment of states’ laws regarding access to digital information, such as the Revised Uniform Fiduciary Access to Digital Assets Act, your Estate Plan should include language that contemplates access to digital information.
Additionally, you should consider a “Digital Will” or “Virtual Asset Instruction Letter”. A “Digital Will” or “Virtual Asset Instruction Letter” is a written instrument which appoints a fiduciary to access your digital information in the event of your mental incapacity or death. It should list the websites where you have accounts, along with user names and passwords to give the fiduciary the ability to identify and access these accounts. It should contain specific instructions, if you wish to leave specific instructions, such as to which accounts you want the fiduciary to have access.
Additionally, there are online services that can provide you with an online, secure, encrypted information vault for your important documents, such as life insurance policies, bank information, documents, photos, funeral instructions, and disposition of social media accounts, as well as a place to securely store your passwords. Most of these services can also allow you to assign a beneficiary to the information stored.
Protection, Security, and Peace of MindSM
As always, it is important that you get the right advice. If you would like to learn more, and how the Law Offices of Jeffrey A. Asher, PC, can help you, please contact us.