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Do you worry about who will tag your friends on Facebook or check you in at trendy hot spots after your demise? The Missouri Fiduciary Access to Digital Assets Act has just been signed into law; Kansas enacted its own version last year. The act aims to clarify under what circumstances someone can access or terminate another person’s digital assets, including e-mail and cloud accounts, blogs, social media accounts, frequent-flyer miles, cryptocurrencies and online bank accounts.
While the monetary value of some of those accounts may not be great, in this digital age it is still a good idea to consider who should have access to those accounts in the event of disability or death. The individuals you may want to have access to your accounts include an agent under a durable power of attorney, a personal representative, a conservator or a trustee (referred to as a “fiduciary”).
The act creates some basic parameters regarding access to digital assets. Some service providers, such as Facebook, may provide an online tool through which the account holder can designate who will have access to the account or prohibit access entirely. The directions put in place through a service provider’s online tool will control over a contrary direction expressed in a legal document such as a will, power of attorney or trust. However, if the service provider does not offer an online tool or the account holder does not utilize it, the directions within such a legal document will control.
A service provider’s “terms-of-service agreement” (which hardly anyone reads!) will control only if the account holder does not otherwise provide direction through an online tool or a legal document. The terms-of-service agreements vary among service providers and the type of digital asset, so it is best not to rely on them. It is best to utilize each service provider’s online tool to the fullest extent possible, because it is given priority under the act. Your estate-planning documents should, however, supplement the online tools. Your fiduciary will have an easier time accessing the digital assets if the fiduciary is nominated in an online tool than if the fiduciary has to submit legal documents to the service provider.
Another reason to use the online tools is that the act distinguishes between access to the actual contents of an electronic communication (e.g. e-mails) and a mere catalogue identifying only the sender, recipient, date and time of the communication. Absent a court order, a service provider is not obligated to disclose the content of any electronic communication to a fiduciary unless the account holder expressly authorized access to the contents.
Most important, consider creating (and periodically updating) an inventory of all of your digital assets along with any related usernames, passwords and account numbers. Taking a few moments now to make such a list will save your fiduciary and family a significant amount of time upon your death or disability, when access may otherwise be difficult.
Your digital inventory should obviously be kept in a secure place. In addition, you may want to include instructions in your estate plan with regard to disposal or inheritance of each digital asset, particularly those with monetary value such as airline miles. New companies have started to emerge, offering a single online portal to designate who has access to all of an account holder’s social media accounts upon proper notification of the user’s death, but proper planning and coordination with your estate plan is always the better option and ensures all digital assets are covered.
If your estate-planning documents are older than your Twitter account, your plan likely does not address your digital assets. A few moments of planning now can save your family members and fiduciaries the time-consuming endeavor of locating and attempting to guess your log-in information to access your digital assets.
Designating who has access may be done on an asset by asset basis. Digital assets stored on social media sites and blog accounts may contain pictures and personal communications that your family wants to preserve, whereas digital assets stored in an email account, on-line QuickBooks or bank account might have information a fiduciary needs in order to run your business or manage your finances.
Gretchen Gold is a partner in the Kansas City office of LathropGage, and Justin Whitney is an associate at the law firm.
P | 816.460.5410
E | ggold@lathropgage.com
jwhitney@lathropgage.com