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 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 provider alleged actual consent of the user was required. In that case, the court concluded that the administrators’ legal ability to act on behalf of the deceased’s estate sufficed as “lawful consent,” and therefore, the deceased’s actual consent was not required. The court reasoned that limiting lawful consent to actual consent, 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.
It is important to keep in mind that this area of law is still evolving. Providers, users, legislators and courts are all trying to navigate the digital afterlife with no simple, static solution on the horizon. But, the Digital Assets Act is a solid first step toward creating a predictable framework for the disposition of digital assets, store credits, e-book libraries, and the like. As more and more people amass vast digital assets and libraries – along with the continuing explosive growth of cryptocurrencies like Bitcoin – people would be well-advised to start thinking and planning how their estate plan deals with the disposition of these assets which, soon enough, may very well be worth more than grandma’s teapot.
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