Online financial accounts ... Email accounts ... Social media accounts ... Picture storage ... Reward points from credit cards ... all which are types of digital assets. Nowadays, we live in a world where individuals rely on smartphones and computers for work and their personal lives. Therefore, it is becoming increasingly more common that clients have digital assets in their name – whether they realize that they are legally considered “digital assets” or not.
The Revised Uniform Fiduciary Access to Digital Assets Act took effect in Indiana in mid-2016. This new law allows specific individuals – like Power of Attorney, a Personal Representative, Trustee, or Guardian – to access your digital property should you become incapacitated and upon your passing. For example, say you have an online savings account and have the monthly statements sent to you via email. If you were to become incapacitated or upon passing away, the appropriate individual would be able to “step in” for you to handle the financial affairs associated with the account and be able to access your email to gain needed information from the statements.
So, what does this mean for you? You may need to update your estate plan to include specific provisions which will grant your Power of Attorney, Personal Representative, Trustee, and/or Guardian the power to access your digital property upon incapacity or death. Updating your estate plan to include such provisions will likely prevent a roadblock, delay, or headache down the road. Though, inevitably not everyone will get their existing estate plan updated – at that point, what would happen?
Well, it depends.
Some digital property assets, like online financial accounts, will allow the owner (of the asset) to designate specific individuals which the company can disclose asset information to. However, if the company does not provide this option, there are “default” rules that apply.
First, if an individual has not updated their estate plan to include specific digital asset provisions and the company does not provide an option to designate standby individuals, the “terms of service agreement” controlling the account will govern. Of course, this agreement is the tiny print that very little people read, but yet agree to whatever-it-says.
Second, if an individual has not updated their estate plan and the company does not provide an option to designate standby individuals and the terms of the service agreement does not address non-owner access to the asset – then the “default” rules depend on what “role” (like Power of Attorney, Personal Representative, Trustee, or Guardian) is requesting access to the digital asset.
In general, the “default” rules for serving as a Power of Attorney, Personal Representative, and Trustee are quite similar. If the respective document naming individual(s) to serve in these capacities lack the digital asset provisions, the individual will be allowed to access digital assets for “purposes of carrying out their duties” – however, they “will not have access to electronic communications like emails and text messages.” Therefore, some access to digital assets is granted, but not complete access – as such, it leaves some gray area which could cause the previously-mentioned roadblock, delay, or headache. For example, what specifically falls under the “purposes of carrying out their duties” and what does not?
Our recommendation is to, first, take a couple of minutes and think about whether or not you have digital assets. Do you have an online investment or savings account? Do you have a personal email account? Do you store your pictures on your computer and/or an online database? Have you accumulated reward points from using a credit card? Our second recommendation is if you have accumulated one or more “digital asset” it is important to consider updating your estate plan to appropriately reflect your wishes in regards to your Power of Attorney, Personal Representative, Trustee, and/or Guardian accessing your digital assets.
If you want to learn more about estate planning and elder law for your family and loved ones, we are offering a FREE educational workshop on Tuesday, November 21st at 1:00 pm. Just click here to reserve your spot and we'll give you the details! We'll see you there!
All the Best,
Source: Kissel and Olimb: New Law Affects Estate Planning for Digital Property, Indiana Lawyer Newspaper.