The world has gone digital, and digital platforms and devices are everywhere. For the first time in history we are seeing a generation that has grown to adulthood whose everyday life has always been focused around technology. Even older adults who grew up listening around a radio have logged onto the digital bandwagon. Indeed, almost 70% of adults over the age of 65 report going online. Technology has changed the way we live and now estate planning attorneys are realizing it is changing what happens to our assets when we die. Until just a few years ago, clients were primarily concerned about who gets the family home, their 401(k) or grandma’s teapot. Today more and more clients are asking about planning tools for their digital assets.
Have you ever wondered what happens to your emails, digital photographs, online accounts, Amazon store credits, digital gift cards, and iTunes library after you are gone? Almost all states have begun to address the issue of digital assets by passing laws dictating how digital assets are disposed in the absence of directives by a decedent. Rhode Island got to the game early on as one of only six states that in 2007 passed a law allowing executors to gain access to a deceased person’s email. Since that time, however, Rhode Island has been sitting on the sidelines as more than 35 other states have gone on to adopt the Revised Uniform Fiduciary Access to Digital Assets Act (the “Digital Assets Act”) This recent uniform law provides fiduciaries (like executors and attorneys-in-fact) with a legal path to managing the digital assets of deceased or incapacitated people.
As a uniform law, the Digital Assets Act is merely a guideline for states to consider and adopt. Most states have either enacted the law or are in process of doing so. Rhode Island introduced its version of the Digital Assets Act in February of 2018, but the bill was tabled for further study. Thus far the Massachusetts legislature has been silent on the issue of digital assets. However, in 2017 the Supreme Judicial Court of Massachusetts ruled in favor of the administrators of an estate that were demanding access to a decedent’s email. The court reasoned that denying access would significantly curtail the ability of personal representatives to perform their duties under state probate and common law.
The Digital Assets Act gives fiduciaries certain powers to manage digital assets, but it also attempts to provide some privacy protections for the “owners” of the digital assets, as well as legal protections for “custodians” (the businesses who make, store, or provide digital assets) such as limiting access for the purpose of administering an estate or charging administrative fees. Legislatures and the courts are in the process of balancing these very important policy concerns for individuals who fail to incorporate their wishes into their estate plan.
Under the Digital Assets Act, any directions regarding disposition of an asset that you make via an online tool available from the provider will prevail. (note: some provider do not currently have such a tool) If the provider does not have an online tool allowing you to designate beneficiaries, then directions in a will, trust or Power of attorney will prevail. In the absence of any direction at all, the digital asset will be distributed according any terms of service of the particular provider as they exist at the time of death. It is important to keep in mind that this area of law is in flux and given the rapid rate of technological advancements it is more important than ever to engage a Trusts & Estate attorney who is diligent about digital asset planning tools.