Question: I am a single individual currently doing some estate planning and am curious whether I need to be more proactive with respect to my digital assets. If I don’t, how difficult will it be for my executor to get access to my digital property (social media, email, etc.) at such time? Answer: The answer is not clear, but for the most part, states have not been too proactive giving one’s executor access to a decedent’s social media accounts. However, if the decedent was a Delaware resident at the time of his death, you should be aware that the ‘Digital Access and Digital Accounts Act’ became the first law in the states to address access to a person’s digital assets after the person dies or becomes incapacitated. Under the new law, a Delaware resident’s digital assets will become part of her estate after death and this property will be accessible to heirs to the same extent as the deceased person’s physical, tangible assets. The new law will not apply to digital accounts of an employer regularly used by an employee in the usual course of business. But, the law does require any company that controls a person’s digital property to give the executor of the estate the usernames, passwords and other information needed for the executor to get access to the digital assets upon written request. Moreover, any contrary provisions in service agreements or privacy policies that limit a fiduciary’s access to digital accounts are automatically void. Of course, the account owner can take measures to specifically block the account and protect his privacy after his death. Comment: The Delaware law also provides a company controlling the digital property immunity for complying with a request from an executor to access the account.
As always, if you have questions or would like to know more about estate plans and estate administration please contact Steven E. Shane at:
firstname.lastname@example.org | 301.575.0313.
Steve provides strategic counseling to clients in need of estate administration, charitable giving and business continuity planning while minimizing estate, gift, and generation-skipping transfer tax exposure. He offers legal guidance to clients on asset protection and the proper disposition of assets in accordance with the client’s objectives, while employing tax planning techniques such as the use of irrevocable trusts, life insurance planning, lifetime gifts and charitable trust. He is also experienced with drafting documents for business planning, the incorporation and application for exemption for Private Foundations and the administration of decedents’ estates.