Estate planning in the digital age

By Stephanie Reid

For the average person making a will, the concept of “digital assets” and planning for the transfer of one’s digital life has simply not been on the will writer’s radar. Until now, that is.

Historically, surviving loved ones had no real right to access the digital files and secure online accounts of a decedent. Absent personal knowledge of the departed’s password and login, family members were left to deal with a labyrinth of legal obstacles erected by well-meaning tech companies, mostly for purposes of online security and privacy.

As a result, Facebook and Instagram pages remained online indefinitely, allowing anyone to leave messages, secure screenshots, or access the deceased’s information. Moreover, blogs, websites, accounts, and secured digital creations were left in limbo, as executors are not generally granted access to these assets in the boilerplate language of a will or trust.

Fortunately, a new influx of laws is set to change all that, particularly given the recent completion of the Model Uniform Fiduciary Access to Digital Assets Act, which many states are considering and a number have recently ratified. The UFADAA provides a framework through which executors and trustees can access the deceased’s digital life, providing much-needed peace of mind for those with substantial assets stored online or in the cloud.

Basics of the UFADAA

The model UFADAA, completed in 2015, revised several provisions of the 2014 version, which many believed encroached a bit too far on the privacy rights of the deceased. The 2015 version addresses a wide array of issues concerning digital asset ownership, including:

  • A specific procedural framework for executors and trustees to follow when seeking access to digital assets
  • Regulations concerning the disclosure of digital assets, content, and information derived from the digital asset itself
  • Duties of the executor or trustee in handling digital assets, including the fiduciary duties of loyalty, confidentiality, and fair dealing
  • Custodial compliance in the interim period between the death of the asset holder and the transfer of the asset

An executor or trustee needs to understand the extent and limitations of the UFADAA. For instance, the UFADAA permits fiduciaries to access files stored in the cloud, as well as web domains and even virtual currency (e.g., bitcoin). However, there are certain restrictions that every trustee or executor should consider before attempting to access the digital assets of the deceased under the provisions of the UFADAA.

What the UFADAA cannot do

While the provisions of the UFADAA undoubtedly provide a convenient tool for fiduciaries seeking to protect the interests of the deceased, they can’t override the terms of a validly-executed estate plan. More specifically, if the decedent had already made arrangements for the handling of digital assets after death—and the plan does not include the trustee or executor in its administration—the estate plan will trump the fiduciary rights listed in the UFADAA.

Further, the language of the UFADAA does not cover digital communications, including emails, text messages, and social media accounts. Unless the decedent expressly consented to allow the fiduciary access to this information (i.e., via power of attorney, will, or trust), the fiduciary will need to work through the tech company’s legal department to gain access, which is often discretionary and granted on an “as needed” basis.

Lastly, the UFADAA does not have any bearing over an account that is held jointly with another person or persons. Upon the death of one account holder, the remaining account holders enjoy unfettered access to the digital assets and information, and a fiduciary cannot intervene in this ownership right, even for good cause.

In the meantime…

What can digital account holders in states that have yet to ratify the UFADAA do? Digital estate planning is a blossoming legal niche and one everyone should think about implementing, particularly if profitable blogs or websites are at stake. While contemplating one’s own demise is never comfortable, consultation with a competent digital estate planner can save family and beneficiaries a huge amount of effort and stress in the long run.

About the Author

Stephanie Reid obtained her J.D. from Regent University School of Law and her Bachelor of Arts degree from Florida State University. After two years in private practice, Stephanie has opened her own law firm, Stephanie Reid Law. Her practice offers innovative web-based legal services for estate planning, family law and business clients. Stephanie also writes for AvvoStories, brought to you by Avvo, the leading online legal marketplace connecting consumers and lawyers. Avvo’s free Q&A forum with more than 9 million questions and answers, along with on-demand legal services that provide professional counsel for a fixed cost, make legal faster and easier.

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One Response to Estate planning in the digital age

  1. July 4, 2016 at 6:03 pm #

    The opt-in approach to the Wisconsin Digital Property Act allows users to express their intent to grant fiduciary access and disclosure to digital property either through an online tool or through estate planning documents.

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