A growing issue involves what happens to our digital assets upon death. On a daily basis, we create vast quantities of “digital assets” in the form of text messages, as well as images such as photos and media. Common examples include Facebook, LinkedIn, Twitter, websites, contact lists, Netflix, Amazon, iTunes, electronic books (such as Kindle), e-mails and YouTube. Think of the thousands of treasured family photos that are stored on the cloud as well as music and books. Gaining access to, and control over, these accounts when a loved one dies is a major ordeal. Many of us also have electronic accounts for online banking and investments.
When you prepare a testamentary will, you typically provide for the disposition of the contents of your home, bank accounts, jewelry and investment accounts. Often overlooked is the transfer and disposition of your digital assets and electronic files. While service providers like Facebook, iTunes and Amazon look to protect your privacy by restricting access to the account by anyone else, it creates problems for guardians, executors and other responsible parties attempting to gain control over those same assets upon your demise. The problem is further compounded because we are constantly reminded of the importance of maintaining separate and complex passwords to protect such assets and changing those passwords frequently. Simply sharing account logins and passwords with family members can be problematic since it increases the likelihood that unauthorized persons get ahold of this information. Moreover, with the increasing number of such accounts coupled with the need to change passwords periodically, it becomes difficult to keep this information up to date.
Maryland’s General Assembly will be considering a bill this year that will address this issue. It will start with model legislation created by the Uniform Fiduciary Access to Digital Assets Act (“Act”). The Act recognizes a fiduciary as an authorized user for the digital asset account. Moreover, the Act recognizes four types of fiduciaries including personal representatives/executors, guardians, agents named under a power of attorney and trustees. The goal is to empower you, as the personal representative for example, to stand in the shoes of the account owner and continue to manage the account without violating the terms of service agreement that the account owner agreed to when the account was first established.
Some service providers are now taking action. Just recently, Facebook announced that it will allow account owners to name a “legacy” person who would be authorized to manage the account upon the owner’s death.
In the meantime, consider reviewing your estate planning documents to include provisions authorizing your fiduciaries adequate access to, and control of, these valuable, confidential and ever-expanding digital assets. We are updating client documents to address these important issues. For more information about this, please contact me at firstname.lastname@example.org.