What Are Digital Assets?
The definition of a digital asset is “anything that exists in binary data which is self-contained, uniquely identifiable, and has a value or ability to use.” Digital assets include but are not exclusive to digital documents, audible content, motion picture, and other relevant digital data that exist on digital appliances such as personal computers, laptops, portable media players, tablets, data storage devices, telecommunication devices, etc.
Do you know how those lengthy “Terms of Service” agreements that you accept when you download a new app or online service prohibit you from allowing a third party to access your data? Me neither….because no one reads them (even lawyers). But with nearly 90% of the people in the United States using the internet for social media, online shopping and banking, and e-mail, there often is a need for someone other than the original authorized user to access this data. This need often presents itself in estate planning or probate matters.
Current Digital Asset Legislation
Due to a lack of either legislation or legal precedent, there has been limited control over digital assets. Many of the control issues relating to access and transferability are because some digital assets are maintained by individual companies. What will happen to these digital assets once their owner is deceased, and how can they be inherited, are questions resulting from this digital asset ownership.
The Connecticut Revised Uniform Fiduciary Access to Digital Assets Act (effective since Oct. 1st, 2016) lets you make changes to your Will and Power of Attorney documents in order to allow your fiduciary to access your online data. Allowing access can make things easier on your family after you die or become disabled. It will allow your family to safeguard your assets, protect against identity theft, preserve your story, and prevent financial loss.
The authorization for your fiduciary must be explicit and in writing. It is important to include the authority in both your Power of Attorney, which gives your agent authority if you become incapacitated, as well as your Will, which gives your executor authority after you pass away. The authority under the UFADAA does not allow a fiduciary to access the person’s employer’s email so it is a good idea to create a Gmail account and use it for all of your personal emails.
Federal privacy laws, including the Stored Communications Act, however, have presented roadblocks to executors and agents under a power of attorney (“fiduciaries”) who attempt to access online data of the decedent or person they represent. The Stored Communications Act includes hefty financial penalties to companies that disclose private data to a third party. As such, providers like Yahoo, Google, and Facebook, have been known to refuse to allow fiduciaries to access accounts, and they have the money to take their cases to court.
How To Ensure Your Information Stays In The Family?
In addition to making changes to your Will and Power of Attorney, if you use sites like Facebook or Google, you can appoint someone to have authority over your accounts directly with the provider. Facebook allows users to designate a “Legacy Contact”, which is someone who can have access to your account after you pass away. and Google’s “Inactive Account Manager” allows users to decide when and if their account should be treated as “inactive”, who is notified of such occurrence, and what happens to the data.
Now, aren’t you glad you read this whole article and didn’t skim through it as you do with those Terms of Service Agreements?
Attorney Wilson practices in the areas of estate planning, elder law, Medicaid planning, conservatorships, probate and trust administration, and real estate. Admitted to practice in the States of Connecticut and California, she is the Vice President of the CT Chapter of the National Academy of Elder Law Attorneys (NAELA), an active member of the Elder Law Section of the Connecticut Bar Association, accredited with the PLAN of CT for Pooled Trusts, with the Veteran’s Administration to assist clients with obtaining Aid & Attendance benefits for long-term care needs and with the Agency on Aging’s CareLink Network.