Digital Assets

Q. Any updates on how a fiduciary accesses digital assets?

A. South Carolina passed the Uniform Fiduciary Access to Digital Assets Act in 2016 which gives agents under a duly authorizing power of attorney, or a trustee, personal representative and conservator (ie. legal fiduciaries) access to a person’s online accounts, correspondence and other computer files, if specified in a trust, will or authority is created by a court order.  At least 45 other states have enacted this Act.  Note this law excludes access to digital assets belonging to an employer used in the ordinary course of business.

A digital custodian (the entity where digital information is hosted or stored) has several choices regarding information provided to the fiduciary recipient, namely:

  1. Full access,
  2. Partial access that is sufficient to perform the task with which the fiduciary is charged; or
  3. To provide a hard copy rather than provide direct access;

AND the custodian

  1. Does not have to give anything the principal, ward, or decedent deleted;

AND

  1. Access can be completely or partially restricted by federal law or terms of a service agreement.

Even if you want your fiduciary to have access to your digital asserts, and not everyone does, it is extremely helpful to leave accessible information for your named agent on what those assets are along with any websites, usernames, account numbers and passwords.  This information should not be included in your power of attorney or Last Will and Testament which will become public record.  You may also want to create a handwritten or computer letter that includes specific instructions on what you want deleted, or shared with family and friends, like Facebook photos.  Keep your instruction letter up to date.

Many folks opt to keep backup files of photos and important legal and financial documents.

I also suggest you complete site specific forms when available.  This makes it less likely your fiduciary will encounter problems and your privacy will be protected.

Check to be sure your legal documents include specific language on digital assets, especially if they were prepared prior to 2016.  If specific language is not there, then you should have them reviewed and updated.

Just a few words on some common digital assets.  Google has an Inactive Account Manager that lets you preset when you consider your account inactive, three to 18 months without logging in.  You can opt to have the account data deleted or sent to one or more email addresses.  An inactive Gmail account name cannot be reused.  Facebook allows for a Legacy Contact who manages a memorialized page with limited controls or you can opt for total deletion of your Facebook page.  Facebook responds to notification of death by a friend or family member.

Disclaimer:  Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client.  No attorney-client relationship is created by reading this column.     1/2019

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