Legislation Regarding Digital Assets Poses Planning Considerations

As technology and the use of social media become more prevalent, access to digital assets in the event of the account owner’s death has become an increasingly important estate planning consideration. Digital assets include a variety of media including social media pages, emails, and frequent flyer points.

There have been many reported instances when family members have faced tremendous obstacles gaining access to a deceased relative’s digital assets.  A number of states have introduced and/or enacted legislation on the topic. Connecticut laid the groundwork for digital asset planning with the approval of Public Act No. 05-136, “An Act Concerning Access to Decedents’ Electronic Mail Accounts,” which took effect October 1, 2005. Over the past several years, other states have acted to adopt laws that protect digital assets and grant the family of a decedent the right to access and manage those assets.  In 2014, the Uniform Law Commission approved the Uniform Fiduciary Access to Digital Assets Act, which is designed to allow executors, trustees, or the person appointed by the court complete access to a decedent’s digital assets.

In April 2016, the New Jersey legislature proposed bill A3598 which would authorize an executor or administrator to access digital assets of a deceased person. The law was referred to the Assembly Judiciary Committee. A link to the full text of the proposed New Jersey bill is http://www.njleg.state.nj.us/2016/Bills/A4000/3598_I1.HTM.  In May 2016, the New York legislature proposed bill S07604, which is similar to NJ A3598, but primarily focuses on providing a procedure for disclosure of digital assets. The bill was amended on third reading, now titled NY A09910, and is currently awaiting Senate approval. A link to the full text of the proposed bill is http://assembly.state.ny.us/leg/?default_fld=&bn=A09910&term=2015&Summary=Y&Actions=Y&Text=Y&Votes=Y#A09910.

In the absence of a controlling statute, there are a few basic actions that can help secure access to an account owner’s digital assets. At a minimum, it is recommended that a list of all user names and passwords of digital accounts be maintained. This list should be stored in a secure place, and the executor of the account owner’s estate should be notified how to retrieve this information. These digital assets include email addresses and airplane miles/vacation rewards, as well as bank account login codes. This list should be reviewed and updated periodically to reflect password updates.

In an instance where an account owner may feel uncomfortable authorizing access to social media accounts, or other programs that contain personal messages and information, several of the major social media platforms have recently introduced procedures for users to decide how they want their account to be managed after they pass away. For example, Facebook recently allowed its users to select a legacy contact. This contact will be granted limited access to the account. For example, the contact may be authorized to change a profile/cover photo or add relatives who were not previously connected. Limitations have been placed on the contact’s ability to log in to the account or see personal messages or images. Other platforms have similar procedures which can be accessed by the following links:

https://www.linkedin.com/help/linkedin/answer/2842?lang=en

https://support.twitter.com/articles/87894#

https://help.instagram.com/264154560391256/