We are all well accustomed to the digital world. Nearly all of us go online daily to shop, bank, check the news, or update our social media accounts. We store our photos online, keep contact information, and even manage our financial assets online. Our online presence, emails, social media accounts, subscriptions and every other digital account reflect who we are and can often be an extension of ourselves. With the increasing digital world and new data generated nearly every day, you may be asking what to do with these digital assets when you die. Where do they go? Can anything even be done with them?
These types of assets are referred to as digital assets. Digital assets are your personal e-mail accounts, online bank and brokerage accounts, frequent flier accounts, Facebook accounts, and other social media websites. There are four main categories of digital assets:
- Personal assets
- Social media assets
- Financial assets
- Online business accounts
While you may not think your Facebook account or email account or other digital assets are that valuable, the value exists in the data they store, the sentimental value of your photo albums that you no longer keep in physical form, and other memories in the form of posts and status updates. These assets should be treated just as you treat your physical assets.
Until recently, very few laws helped to determine who could access these files and accounts if the user became incapacitated or died. If the deceased or incapacitated person wanted any of their digital assets to be deleted, modified, or distributed to loved ones, it was difficult to determine who had the legal rights to access them. Unless the person provided usernames and passwords, the executor of the estate would have no ability to access them. As a result, digital assets would often be deleted by the “custodians” (the businesses who make, store, or provide digital assets), or they would continue to linger on the Internet or on devices long after the person’s death. This gap in the law caused heartache for families who wanted to collect cherished items from their loved one’s online profiles.
Oklahoma attempted to correct this problem by implementing a statue which allows the executor of an estate to take control of a deceased person’s digital assets if they had already been authorized. The statue states, “The executor or administrator of an estate shall have the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.” It has not been determined if this statute allows the custodian company who owns the digital assets to set aside federal privacy laws and give the executory or administrator of the estate access to all of a decedent’s accounts. This issue may be irrelevant though as Oklahoma may enact the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).
The Revised Uniform Fiduciary Access to Digital Assets Act
The Revised Uniform Fiduciary Access to Digital Assets Act provides fiduciaries (executors of the estate and attorneys-in-fact) with the ability to manage the digital assets of deceased or incapacitated people. It is unsure if Oklahoma will adopt this law, but it is likely as most states have enacted the law or are in process of doing so.
RUFADAA provides access to your digital assets.
The following is provided in RUFADAA:
- If the internet provider has established an online tool for addressing issues of fiduciary access, and the user has filled out that form, then that controls the fiduciary’s access to that particular asset, regardless of what the user’s will, trust, or power of attorney might otherwise provide.
- If the provider has not established an online tool, or the user has not used that tool, then the user’s written direction in a will, trust, power of attorney, or other record overrides a general direction in the internet service provider’s terms-of-service agreement.
- If a user provides no specific direction under, then the internet service provider’s terms of service will govern fiduciary access. If the terms of service do not address fiduciary access, the default rules of UFADAA 2017 will apply.
RUFADAA also protects your privacy.
RUFADAA balances the interests of the owner of the digital assets, the business who makes, stores, or provides the digital assets and the executor of the estate. The revised law reduces the executors ability to access the digital assets and protects your privacy in the event you do not want the executor to access your information.
- Unless the deceased person explicitly consented to disclosure, an executor no longer has authority over the content of electronic communications (private email, tweets, chats).
- An executor must petition the court and explain why they need access to other types of digital assets.
- If a fiduciary does not have explicit permission through a will, trust, or power of attorney, custodians can look to the terms-of–service agreements to determine whether to comply with requests for access to a deceased person’s account.
- Custodians may not provide access to deleted assets or joint accounts.
- Custodians may request court orders, limit their compliance by providing access only to assets that are “reasonably necessary” for wrapping up the estate, charge fees to comply with requests for access and refuse unduly burdensome requests.
How to manage and protect your digital assets?
The best way to protect your digital assets is to draft a will or create a trust. Specific provisions can be written in to protect your digital assets and make arrangements so that the executor of your will can access your accounts and information. One way to do this is to provide usernames and passwords of your computer and back up hard drives to the executor of your will or your family members. If you use online cloud based storage, a plan needs to be in place to access that information as well. However, providing usernames and passwords is often not enough. There are frequently limitations which deny successors the ability to access, manage, distribute, copy, delete, or even close accounts. The most important way to avoid these potential problems is to draft a will which properly disposes of your digital assets. The attorney at Skillern Law Firm, PLLC can help you draft a will to ensure your digital assets are protected and stored appropriately.
If you don’t want anyone accessing your digital assets when you die or become incapacitated, see a lawyer to discuss ways to protect your privacy. The attorney at Skillern Law Firm, PLLC may be able to craft a provision for your will that explicitly prohibits your personal representative from accessing certain assets. Or the attorney could help you set up a trust that appoints a trusted person to guard the assets on your behalf.
Contact Skillern Law Firm, PLLC
If you have digital assets you wish to protect or want to protect your privacy, contact Skillern Law Firm, PLLC today to discuss drafting a will which will provide for protection for your digital assets. The attorney at Skillern Law Firm can help evaluate what the best option is for you. For more information, reach out to us today at (918) 805-2511 or email firstname.lastname@example.org.