The Fiduciary Access to Digital Assets Act

 

Effective June 27, 2016, the Fiduciary Access to Digital Assets Act (“the Act”) allows an individual to designate in their estate planning documents a fiduciary that is authorized to access their digital assets and computer devices.  This new estate planning tool allows the fiduciary to have the same rights to the individual’s digital assets as a fiduciary has to traditional tangible assets.

So, what are digital assets?  Digital assets include, for example:

  • Social Network Accounts – (Facebook, Twitter, LinkedIn, Instagram)
  • Cloud Storage Accounts – (Google Drive, Apple iCloud, Dropbox)
  • Digital Photograph Accounts – (Shutterfly, Snapfish, Flickr)
  • Financial Accounts – (Online Bank Accounts, Online Investment Accounts, PayPal)
  • Music and Video Accounts – (iTunes, YouTube)
  • Dating Sites – (Match, eHarmony)
  • Gaming Sites – (World of Warcraft, Guild Wars)

One of the primary goals of the Act was to override the terms of service agreements to the extent they prohibited fiduciary access.  Now, "digital custodians," the holder of the digital asset, may, in their discretion, grant full access to the account; grant sufficient partial access to the account; or provide a copy of the asset rather than on-line access, for example, by providing a CD containing the digital asset.

The Act applies to the following fiduciaries: the personal representative of an estate, a court-appointed conservator, a fiduciary acting under a will or power of attorney, or trustee of a trust of which the individual is the grantor.  Therefore, an individual concerned about their digital assets should include specific language in their will, power of attorney, and/or trust setting forth powers regarding digital assets. 

Specific instructions can be included regarding specific digital assets, such as not wanting them viewed by certain people or directing for them to be immediately destroyed upon death or incapacity.  Additionally, a separate fiduciary can be designated solely for purposes of digital assets distinct from the primary fiduciary in the document (personal representative, agent, trustee), which may be appropriate when the primary fiduciary is not technologically savvy.

For more information, contact Estate Planning attorney, Jeffrey M. Black, at (616) 458-3994 or email jblack@pmalawpc.com

Categories: Estate Planning

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