Tuesday, March 11, 2014

The Digital Death Conundrum

What happens to your client's Facebook page after he or she dies? Does a decedent's executor have access to the decedent's Gmail account? These are some of the questions facing attorney's dealing with estate planning in the digital age. The current issue of the University of Miami Law Review features an article that tackles the issue of digital assets and attempts to provide answers to these questions.

"The Digital Death Conundrum: How Federal and State Laws Prevent Fiduciaries from Managing Digital Property," by James D Lamm, Christina L. Kunz, Damien A Riehl, and Peter John Rademacher, considers the problems that digital assets create for four types of fiduciaries: powers of attorney, conservatorships, probate administration, and trusts. From the article:

[T]he digital world is like the “Wild West,” in that its growth has outpaced legal and regulatory efforts. Although federal and state governments have enacted laws to control aspects of the digital world, some of these laws predate the World Wide Web and stand as inadvertent barriers to the execution of fiduciary duties in the digital world. State legislatures, private entities, and courts have made some efforts to correct these problems, but no current solutions provide the level of certainty that account holders and courts typically seek in fiduciary property management. Consequently, account holders are uncertain about the future of their digital property; fiduciaries must choose between refusing to manage digital property at the risk of civil liability, and executing their duties at the risk of criminal liability. . . . After illustrating the problems that digital property creates for each fiduciary, the article shifts to resolving these problems. It begins by debunking purported solutions by both private and governmental entities. It concludes by offering a holistic approach to resolving the conflicts facing account holders, fiduciaries, and service providers and providing the level of security sought in fiduciary property management, as well as a best-practices approach in the interim to a complete solution.

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