Digital assets include social media and email accounts, voicemail accounts, online bank accounts, photos and music stored online, blogs and any other electronic record. Efforts are underway to position fiduciaries in an estate plan in the same position as the original user as to the ability to access and obtain information. Protecting access and control of digital assets allows a fiduciary to protect and preserve the information for future use or distribution as appropriate after considering its financial or sentimental value. 
Photo credit: Yuri Yu. Samoilov / Foter / CC BY
Unlike other property, there are reasons that digital assets are unique. There are a number of state and federal laws that may impact how a person can access digital assets including laws that make unauthorized access a crime. Also, service providers use terms in their service agreements that contain boilerplate provisions affecting access. Remember those agreements you rapidly scrolled through without reading?! As is often the case where an area of law requires study and uniformity, a proposed law is circulated for consideration in the various states. The law currently under consideration in Kansas and Missouri is known as the Uniform Fiduciary Access to Digital Assets Act (UFADAA). Currently it is being studied or considered for enactment in approximately 28 states. The goal of the law is to remove barriers to a fiduciary’s access to electronic records and to leave unaffected other law, such as fiduciary, probate, trust, banking, investment securities and agency law. The law addresses the following four different types of fiduciaries: personal representatives or executors of decedents’ estates, conservators for protected persons and individuals, agents acting pursuant to a power of attorney and trustees. As is often the case, the need to address this issue has been the subject of litigation. One lawsuit involved the suicide of a minor; another is the case of a member of the armed services killed while serving abroad. While vendors such as Facebook and Yahoo have a vested interest in controlling the access issues for account holders, they recognize the growing issues as statistics suggest there are in excess of 30 million Facebook accounts for individuals who are now deceased. Some in the industry are reacting with the concept of legacy contracts but others are flatly denying any rights to a fiduciary to access a decedent’s account. For now the best advice is to update your estate plan to specifically empower your fiduciaries throughout your plan. Keep your eyes on this newsletter for updates on this topic!
