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Thursday, July 24, 2014

Access to Digital Assets After Death Is About to Get Easier

Digital assets can be a thorny issue for estate planning. Probate law has not kept up with technology, and often fails to resolve who is able to access digital assets such as email accounts. This digital conundrum may be on the verge of a solution.

The Uniform Law Commission recently approved a Uniform Fiduciary Access to Digital Assets Act. As the name implies, the act would allow fiduciaries such as estate executors and trustees to have access to digital assets belong to the persons they represent. The Uniform Act solves the problem of who can access digital assets by using the concept of "media neutrality."

Media neutrality works by analogizing digital assets to tangible ones. If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset.

The Act has received a positive response from some corners, but other observers have concerns. For instance, Gerry Beyer at the Wills Trusts and Estates Prof Blog worries that media neutrality may override the deceased's wishes and make private information public.

The Act would make digital assets accessible to fiduciaries by default. But it would also allow account holders to affirmatively maintain their privacy. It defers to an account holder's privacy choices as expressed in a document (such as a will or trust), or online by an affirmative act separate from the general terms-of-service agreement.

Whether the Act would simplify estate planning in the digital age or create more headaches remains to be seen. Because the Act is only a model code, no one knows for sure how media neutrality will play out, and we won't find out until a state adopts the Act into law.