Much Ado About Digital Assets

Recently, a widow in Canada made news when Apple told her she needed to obtain a court order to access her late husband’s Apple account in order to continue playing a card game on their iPad. How can that be? Well, terms of service agreements and privacy policies govern access to social media and email accounts and most expire when the user dies. Surviving family members are often unable to access memories contained in social media accounts and other digital assets, even an Apple password, since most state laws that govern the actions of personal representatives or executors were enacted before email and social media became widespread.

Although individual states have made progress in enacting laws that address fiduciary access to digital assets, only nine states, Connecticut, Delaware, Idaho, Indiana, Louisiana, Oklahoma, Rhode Island and Virginia, have passed legislation but most of the laws are limited in scope. Delaware is the first and only state to adopt the Uniform Fiduciary Access to Digital Assets Act (UFADAA) which is pending in several other states and purports to be a comprehensive approach to the definition, ownership and access of digital assets. UFADAA, which defines a digital asset as “a record that is electronic”, is designed to work in conjunction with a state’s existing laws on probate, guardianship, trusts, and powers of attorney. In effect, UFADAA will extend a fiduciary’s existing authority over a person’s traditional assets to include the person’s digital assets, with the same fiduciary duties to act for the benefit of the represented person or estate.

In Massachusetts, a version of the UFADAA is pending in the legislature and until a new law is passed it will behoove us to be proactive to control access to our own digital assets, first, by making and maintaining an inventory of all online accounts and passwords, and second, by including language in our will, trusts and powers of attorney that authorize fiduciaries to access and manage our digital assets upon death or incapacity.

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