The Weekly Scenario: After My Death, What Digital Property Laws Are There?
Question: Are there uniform laws that deal with my ‘digital’ (cloud-based) assets after my death?
Answer: Digital property (e.g., Facebook, Instagram, Twitter) have taken the place of photo albums, diaries and journals. Digital property is stored by technology companies and is subject to terms of service agreements between the user and the company. Historically, these companies could effectively block a user’s fiduciary representatives from gaining access to their accounts after death. Many people (not everyone, of course) would like to give their loved ones access to these accounts, even after death.
As a result of the difficulty in gaining access to this property, 41 states have adopted some version of the Uniform Fiduciary Access to Digital Assets Act. The overall act provides parameters between custodians. Custodians are considered companies that maintain digital property (i.e. Google), users (persons who have accounts with the custodian companies) and fiduciaries (executors, trustees and guardians).
The State of Maryland, in 2015, passed its own version of the act called (very originally) the Maryland Fiduciary Access to Digital Assets Act. The Act now has become a tool that estate and other financial planners can use to plan for a decedent’s digital assets.
Under the Act, custodians of digital property have created an online way that permits a user to give directions for the disclosure of digital assets to third parties after death (and even before death). Essentially, users can identify a ‘legacy’ contact (or fiduciary) to manage their account after death. This legacy contact is granted certain authority to interact with the decedent’s account.
Planning Note: At a minimum, a user should allow (or not allow) the disclosure of digital assets to a fiduciary in a Will, trust or power of attorney. Now that there are uniform laws, estate planning documents can and should be drafted to permit one’s fiduciaries to access the content of the digital assets if that is what is desired.
As always, if you have any questions or would like to learn more, please let me know.
As always, if you have any questions or would like to learn more, please contact Steve Shane at email@example.com or .
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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