Fiduciary Access to Digital Assets

/ May 26, 2015

Man & Woman at Laptop - iStockThe Uniform Law Commission drafted an act to provide fiduciaries with the same access to digital assets as they have had to tangible assets. The Uniform Fiduciary Access to Digital Assets Act (the “Act”) has been introduced in over twenty states, including Minnesota. The Act was introduced and enacted in the Minnesota House of Representatives. It was introduced in the Minnesota Senate but has not currently been enacted. The text of the Act as introduced in the House can be found here.

Until Minnesota, passes a bill that specifically address digital assets, it is that much more important to continue to address your digital assets within your estate plan. Access to most social media accounts (such as Facebook, LinkedIn, email accounts, Twitter, etc.) of a decedent or protected person (incapacitated or incompetent) is governed by the terms of service of that particular service provider. Service providers are starting to address the issue of access by allowing individuals to designate access to another individual in the event of death. See my previous article on planning for digital assets here.

However, a recent, Wall Street Journal article, discussed that clients are even going a step further by creating amendments or an addendum to their estate plan documents to specifically address their digital assets. When we discuss planning for digital assets or accounts, the focus is often on our social media accounts, but the article raised the issue about eBay, PayPal, and iTunes accounts, which can hold considerable financial assets. As the article mentions, “…leaving [such] accounts open after [a client’s] death could leave his heirs vulnerable to having those accounts hacked, a logistical nightmare if [a fiduciary] doesn’t have access to them.”1

 Those types of accounts are often forgotten and that could mean heirs loose out on some additional financial assets. It is important to address those types of accounts within your estate plan to ensure they are secured and transferred properly. If your estate planner does not raise the issue of digital assets, be sure to inquire about including provisions within your plan to address them.

1Estate Planning for Digital Assets, The Wall Street Journal, May 11, 2015.

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