Digital Assets: What happens to your electronic life?
The internet and cloud computing have increasingly over time added a complication to what happens after our death. Our digital assets have become some of our most valuable properties. The law has been hard pressed keep up with the changing digital landscape.
A Chicago nightmare
Imagine the following scenario: One of your parents passes away. They were active on social media. The death is difficult to deal with but over time the healing begins. Then comes what would be your parent's next birthday. Facebook sends a reminder to wish your parent a happy birthday to all of your parent's online friends.
Painful, to say the least, but not unheard of. Thankfully both the legislature and companies hosting various online accounts have been addressing this and other related issues.
RUFADAA addresses digital assets
In 2016, the Minnesota legislature passed the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”). This law serves to develop, broaden, and simplify the former Uniform Fiduciary Access to Digital Assets Act (“UFADAA”). The Act itself gives people the ability to distribute or dispose of digital assets much the same way that tangible property is distributed or disposed of upon death.
Under the Act, a “digital asset” mean “an electronic record in which an individual has a right or interest.” The key being that the asset itself be an actual electronic record. This includes social media accounts, virtual currency, email, web domains, email, and text messages.
RUFADAA allows a person who is a fiduciary to access digital assets in one of several ways.
Online Tool. Under RUFADAA, custodians can create an online tool, separate from their terms of service. (A custodian is a website or email host.) Users can use this tool to determine how much of their digital assets are revealed to third parties.
Estate Planning. The user can authorize access to their digital assets through a will, trust, or power of attorney. Note that an online tool will supersede a will, trust, or power of attorney.
Terms of Service. If the user has neither set up an online tool nor addressed digital assets in their estate plan, the terms of service of the provider/host will control how and who has access after a person's death.
RUFADAA. If neither of the above three mechanisms are in place, then RUFADAA has some default rules. They will control who has access and how access is obtained (generally through court order).
So, where do we go from here?
It makes sense to use an online tool if one is made available by the custodian. This, however, will not address all situations. And with the sheer amount of online accounts people may have, it is inevitable that some of these accounts will be forgotten. Therefore, in any estate plan it makes sense to identify who has the authority to access digital assets.
Note that authority should be in the will (or possibly trust), but also in the financial power of attorney. This may be more important. Incapacity may not be permanent, and affairs should be maintained in case a person recovers. It is also important to have an inventory of digital assets they may have. This should include accounts, usernames, passwords, websites, etc. The inventory should be accessible for the person who eventually has authority to address these assets.
Takeaway
On the one hand there is a current process for dealing with digital assets. On the other hand, it is still incumbent upon everyone to be proactive. The law is not perfect, so a comprehensive estate plan needs to fill the holes. If you have concerns about how your digital assets will be handled after your death, contact Signature Law for a free consultation.