Historically, estate planning has been concerned with tangible assets, such as real estate and personal property, and intangible assets, such as securities and other investment assets. In the digital age, estate planning should also be concerned about another category of assets — digital assets.
“Digital assets” encompasses a wide variety of things, from your email and Facebook accounts to your iTunes music to your electronically stored data to your domain name to bitcoins. Some of them may have actual value, while others may have only personal or sentimental value. But they all represent challenges to survivors trying to deal with them after the death of the asset’s owner.
The biggest challenge may be finding them after a death. If your family or named fiduciary isn’t aware that you have a Dropbox account, no one may ever look for it. And even if someone knows you have a Facebook or email account, it may not be accessible without knowing the password. Leaving this information in a format that can be accessed easily after death will allow your survivors to at least begin to access those assets.
Unfortunately, that is only the first step. There are currently federal and state laws that may make it a criminal offense for anyone other than the account owner to access an account. This is true even if the owner gives another person permission to do so. These laws were intended to penalize hackers and identity thieves, but they also catch others who have no criminal intent when accessing another’s account. Moreover, the laws in general give the service providers the right to not give out information to anyone other than the account owner. These laws have made it difficult for fiduciaries to access these assets after a death.
There is hope, though. By the end of 2017, it is expected that almost every state will have enacted some form of the Revised Uniform Fiduciary Access to Digital Assets Act. RUFADAA will allow for users to request a service provider to give a fiduciary access either by opting in on an online tool furnished by the service provider or through one’s estate planning documents.
An on-line tool will apply on an account-by-account basis, so a person will be able to pick and choose which accounts he or she grants access. (Currently, very few providers have these online tools, though.) A choice on an online tool will override any provision of a power of attorney, will or trust. Absent an election on an online tool, a provision in an estate planning document will allow a fiduciary to request access. Without either, a fiduciary only may be able to get very limited access to certain information related to an electronic account.
Even with RUFADAA, the best that a fiduciary will be able to do is request access. If the service provider refuses to do so, it still may be necessary for the fiduciary to go to court and ask for an order directing the provider to comply with the request.
Given all of the tax law changes in recent years (and ones that may occur in the near future), it is likely that many persons should have their estate plans reviewed for tax reasons. Beyond taxes, though, most older estate plans likely have not addressed the issue of digital assets. Having wills, trusts and powers of attorney that grant a fiduciary permission to access digital assets (or deny access to certain of them, if that is what a person prefers) is important in the world in which we now live. It may be time to update those old documents.
Scott Bieber is a partner in Thompson Coburn’s Chicago office. His practice focuses in the areas of family wealth preservation, federal transfer taxation, and family business planning. He can be reached at 312-580-2206 or firstname.lastname@example.org.
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