Question: What are digital assets and will my executors and agents be able to access my electronic accounts after my death or incapacity?
Answer: Digital assets encompass many different things – from Facebook accounts, to iTunes and email. The challenge after a person has died, or has become disabled, is finding them. Even if an account is located after death, how would a person access his accounts without the password?
By leaving this information in a way that is accessible, you will give your survivors at least a fighting chance to access those accounts.
But this isn’t the end of the story. There are federal and local laws that protect these accounts from identity thieves and hackers making it a criminal offense for anyone other than the owner himself to access the information. As such, even individuals for whom the owner gives access may be hard pressed to obtain access to those digital assets.
The good news is that there are laws that are gaining momentum and could be adopted and utilized across the U.S. One such law is the Revised Uniform Fiduciary Access to Digital Assets Act (the “Act”). The Act allows owners to request a service provider give fiduciary access through a person’s estate planning documents or other means.
The hope is that a tool would be available on an account by account basis. This online tool would potentially override any provision in a Will, Trust or Power of Attorney. But even if no election is made by the decedent, the estate documents would give fiduciaries access.
Comment: Even under the Act, the appointed agent would likely only be able to request access to the digital asset. Thus, the service provider could still refuse, and in that case, it would require the fiduciary to go to court.
As always, if you have any questions or would like to learn more, please let me know.
ABOUT STEVE SHANE
Steve Shane 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.
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