Summary: Often times, society moves faster than the law. Legislatures are only now catching up to the fact that many people live much of their lives online and the individuals they name as their fiduciaries need to have a way to access that person's online accounts if the principal becomes incapacitated or dies. The enactment of these new laws creates a valuable new opportunity to modify one's will, trust and powers of attorney to ensure that the fiduciaries you designate have meaningful access. Even with these new laws and new opportunities to express your wishes in your estate planning documents, you may want to consider setting up a separate digital estate plan to ensure that you and your online assets are fully protected.
The Uniform Law Commission is an unincorporated association of lawyers and legal scholars who work together to draft and publish "uniform acts," which are proposed laws intend to bring clarity to important areas of the law. The commission doesn't make laws; the uniform laws they put together may be thought of somewhat like templates, which state legislatures can, if they act on a uniform act at all, adopt entirely or adopt with their own changes.
One area the commission tackled recently was the thorny problem of access to digital assets. Estate planning professionals had, for years, sounded the alarm of this problem where a person died or became incapacitated and, even though that person had named a person (or people) to manage their affairs, that designated agent was unable to obtain access to electronic accounts ranging from online banking to email to social media.
In 2015, the commission created the Revised Uniform Fiduciary Access to Digital Assets Act (Revised UFADAA). Since the commission set up the Revised UFADAA, several states have debated putting its provisions into their statutory codes. 20 have passed fiduciary access to digital asset laws, and a dozen more have introduced bills on this issue. For people residing within the states that have passed these laws, you may want to take this opportunity to consider updating your plan. Several different types of people can potentially qualify as a "fiduciary" under the Revised UFADAA. These people can include the trustee of your revocable living trust, your agent named in your power of attorney or the personal representative of your probate estate.
In order to ensure that the people you want to have access do have the access they need, you may possibly need to modify some of your estate planning documents. For example, without clear instruction in your estate planning documents, your trustee, personal representative or agent under a power of attorney, your designated fiduciary may have some access under the new law, but it may not be enough to be truly helpful. Take, as an example, North Carolina's version of the Revsied UFADAA. The law gives your fiduciary the authority to access your email but, if you've not expressed any powers explicitly in your estate planning documents, your fiduciary can only view the to/from and subject lines of the emails in your account. That's probably not very helpful, is it? However, with the proper express language in your power of attorney, trust agreement or will, your fiduciary can look at, not only the to/from and subject lines, but the entire content of your email account.
Even with advances such as the passage of fiduciary access to digital asset laws, you may still want to consider creating your own separate digital estate plan. For example, even with the new laws, Yahoo! will not give your fiduciaries access to your Yahoo! mail. If your fiduciary notifies Yahoo! that you've died, Yahoo! will simply close your email account and permanently delete everything in it. To protect yourself and your digital assets, you can create your own plan where you record all your digital accounts, from online brokerage and/or banking to email to social media. You can also record your user names and passwords. Obviously, in this age of identity theft, this is a very powerful document and should be carefully encrypted (if it is a digital file) or closely safeguarded (if it is a hardcopy document). You should take care to ensure that only the person (or people) you want to access your accounts in the event of your death or incapacity have the ability to access this information.
This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com.
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