Lawmakers in the state of Delaware recently adopted one of the first laws that specifically recognizes the need for people to address digital assets as they manage the estate of the deceased or incapacitated person. The law, known as the “Fiduciary Access to Digital Assets and Digital Accounts Act,” is designed to allow estate administrators, as well as guardians of incapacitated people, the ability to access and control the digital assets owned by the deceased or incapacitated person. Though the law currently only applies to people in the state of Delaware, it could be a sign of how the law could change in the future as the prominence of digital assets becomes more and more important to people developing an estate plan.
Digital Asset Management
A digital asset is any property or piece of information that primarily exists on a computer, the Internet, or other technological or communications device. You probably have numerous digital assets right now, even if you don’t realize it. For example, if you have a cell phone that has photographs on it, those are considered digital assets. So too are your online bank accounts, social media pages, and anything else that primarily exists on your computer or the Internet.
For some people, such as those who have online businesses, digital assets might comprise a majority of their working life, not to mention their estate plans. For others, digital assets might only be a minor part of their lives, but addressing them through your estate plan is nevertheless important.
Unfortunately, the question of who can gain access to your digital assets in the event of your incapacitation or death doesn’t always have a clear answer. For example, many companies have policies that restrict who can access these assets even if the owner is no longer able to do so him or herself. This can pose a problem when, for example, your estate administrator tries to gain access to your e-mail address, social media pages, or even online bank accounts.
The Delaware law was based on the Uniform Law Commission’s “Uniform Fiduciary Access to Digital Access Act.” The Uniform Law commission is a nonprofit organization whose members are lawyers, judges, and legal professionals. They develop model legislation designed to be adopted by legislatures around the country so that, regardless of what state you are in, the same basic law will apply to whatever legal issue you might face. Though the Delaware law only applies to Delaware residents, this kind of legislation might soon be adopted by legislatures in other states.
Until then, if you’re worried about protecting your digital assets with your estate plan, you need to make an appointment to talk to us so we can discuss your options.
Parman & Easterday
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