As our personal, business and social lives become reliant on technology, the number of a person’s digital assets has multiplied. Digital assets may include:
- Social network accounts (Facebook, YouTube, Twitter, LinkedIn, Instagram, etc.)
- Financial accounts (bank and investment accounts, PayPal, Amazon, WePay, etc.)
- Cloud storage accounts (Dropbox, Apple iCloud, Microsoft OneDrive, etc.)
- Digital photograph accounts (Shutterfly, Flickr, Phanfare, SmugMug, etc.)
- Music and video accounts (iTunes, Google Play, eMusic, Amazon MP3, Rhapsody, etc.)
- Online Gambling accounts (Fantasy Sports sites, BetOnline, MyBookie, etc)
- Website hosting accounts (Yahoo!, GoDaddy, JustHost, etc.)
- Auction site accounts (eBay, eBid, Bonanza, etc.)
- Dating sites (eHarmony, Match, Zoosk, etc.)
- Gaming sites (World of Warcraft, Lord of the Rings, Guild Wars, etc.)
Others might be able to access accounts when the owner or user of these accounts dies or becomes incapacitated. Consequently, “digital custodians,” such as Facebook or Google, might have policies in their user agreements that prevent others from post-death access. This policy often appears during registration. However many users ignore this before clicking the “I Agree” button. Certain federal and Michigan laws consider unauthorized access, perhaps by impersonating a deceased user, a crime. A user might want to prevent post-death access by others for privacy (for example, a married person who has been using dating sites).
The Fiduciary Access to Digital Assets Act
As a result, the Michigan legislature enacted the Fiduciary Access to Digital Assets Act. FADAA became effective June 27, 2016. It states a digital custodian may, by sole discretion, allow a “fiduciary” full or partial access to a user’s account. Alternately, the digital custodian might provide the fiduciary a copy of the account record (such as a CD containing the digital record) rather than permitting on-line access to the record). Understanding certain definitions contained in FADAA is critical to discerning the meaning of the statute.
A user’s fiduciary might include an original, additional or successor conservator. Or, it might include a personal representative of the user’s estate, an agent named power of attorney or the trustee of a trust. FADAA permits the digital custodian to require certain documentation from the fiduciary before obtaining access or using of the digital asset .This might include a death certificate or court order, a copy of the legal document authorizing fiduciary access, an account number, a user name and password and so on. A digital custodian must comply with a fiduciary’s request within 56 days after the required documentation is provided. Also, the digital custodian might require a small fee for disclosing the digital asset.
Note that FADAA prohibits a fiduciary from using his or her authority granted over digital assets to impersonate the user.
What information is the fiduciary given?
Two important definitions restrict the extent of the disclosure of, or access to, digital assets that digital custodians are authorized to make under FADAA: the “catalogue” of electronic communication and the “content” of electronic communication. In the context of e-mail, for instance, the “catalogue” includes information identifying the person who sent or received it, the person’s e-mail address and the date and time of the communication. The “content” includes the substance of the electronic communication, i.e. the actual content of the e-mail.
For content to be released, an account user must opt, according to the FADAA. However, a Catalogue can be released unless the user opts out. That is, a digital custodian shall make his or her fiduciary aware of the content of the communication only if the deceased consented to the disclosure or a court directs it. Additionally, the digital custodian shall make the fiduciary aware of the communication catalogue unless the deceased user prohibited disclosure of digital assets or the court decides that disclosure not be made.
However, under FADAA, a user’s designation through an “online tool” will supersede language in a will, a trust, or a power of attorney. An online tool refers to a digital custodian’s electronic service that allows the user, in an agreement distinct from the terms-of-service agreement, to provide directions for disclosure or non-disclosure of digital assets to a third person. Examples include Google’s “Inactive Account Manager” and Facebook’s “Legacy Contact and Memorialized Accounts.” Decisions that an account user makes with such online tools will prevail over contrary provisions in the user’s will, trust, or power of attorney.
What can I do with my estate plan to care for my digital assets?
There are four key actions to take.
- Keep track of your digital assets. Make a list or record of accounts, including user names, passwords, account numbers and designations made using online tools. It is especially relevant to inform your fiduciary where the record is located.
- Use available online tools. Appoint someone to take care of your online account if you become disabled or die. You might be able to do this through your digital custodian’s online tool, if provided. This supersedes any other directions in your estate planning. As a result, investigate what limitations exist for the online tools.
- Appoint the right person as fiduciary over digital assets. Name someone who knows and will honor your wishes. Therefore, this should be someone who knows a fair amount about computers and online accounts.
- Clearly state your fiduciary’s rights and duties. Your will, trust and/or power of attorney must plainly state what type of access your personal representative, trustee, or agent named in your power of attorney should be granted .
Finally, keep in mind that FADAA is a new statute. Both the law and online tools are likely to evolve over the next several years. Regularly review your digital assets and consult with your estate planning attorney about updates.