Changes are afoot in how digital assets figure into your Estate Planning. For years, great uncertainty existed in the handling of digital assets such as accounts for email, social media, banking, investments, photo and data storage, web sites, and more. We last discussed these matters in our June 2014 visit, but already a major change is occurring, which could affest your estate planning.
One key uncertainty has been the rights of your executor or survivors to access digital accounts. Federal law and most online account hosts say that only the person who opened or owned the account has the right to access it. But the Uniform Law Commission wrote a draft law for the states to consider that would change this. Delaware enacted the law, and at least 13 other states are actively considering it.
The new law allows a fiduciary, such as an executor, trustee, or someone holding a power of attorney, the same rights to access digital assets or accounts that a deceased or disabled person had, after the fiduciary makes a request in writing. The law also makes custodians of the digital assets immune from liability if they in good faith provided access to a fiduciary.
Many of the major social media account custodians are opposing the laws, primarily on the grounds that they invade privacy.
This type of law makes it more important that you include digital assets in your estate plan. Explicitly grant fiduciaries the right to access digital assets. A grant can be broad-based or limited to certain accounts or types of accounts. Also, when appropriate give instructions for how you want certain accounts handled. This might be especially appropriate for assets such as digital photos, social media accounts, blogs, and web sites.