Digital Assets

by Timothy W Stanley, Esq

What happens to our email accounts, social media profiles, web accounts, and other information stored online when we are incapacitated, or ultimately, when we die? There are so many different outlets through the internet and on computers, phones, and tablets to distribute or store information — the people we leave behind may not know every resource we have used (or abandoned) during our lives. This challenge could leave loved ones unable to accomplish two important tasks; first, accessing the accounts to retrieve information (for instance, logging in to a digital cloud service in order to download and/or print family photographs); and second, accessing accounts in order to close them (for instance, shutting down an online merchant service that retains credit card information).  These two simple examples demonstrate how important it is to consider leaving a guide for our fiduciaries (e.g. our Personal Representatives, Agents under Power of Attorney, or Trustees) to be able to access our many internet resources when we are no longer able to do so. Without such a guide, our fiduciaries may be compelled to rely on recent legislation that may only give them a limited ability to preserve or protect the information we store or share online.

In 2018, the Maine Legislature enacted the Revised Uniform Fiduciary Access to Digital Assets Act. This law was codified in response to concerns by the companies that provide online resources about how they should allow access to those resources when a fiduciary requests it. The law distinguishes “digital assets,” which it defines as “an electronic record in which an individual has a right or interest,” from “the content of an electronic communication,” which it defines as “information concerning the meaning or substance of an electronic communication” (18-A M.R.S.A. §10-102). This distinction is important; for instance, in the case of an email account, emails that are sent and received are considered “digital assets” but the actual body of the email would be considered “the content of an electronic communication.” Practically speaking, this means that a fiduciary that was given access to “digital assets” may only be able to see a list of emails that were sent and received, but not the actual content of those emails if they were not given access to “the content of electronic communication.”

A further concern under the new law is the method in which permission is given by the account holder to access digital assets. Under §10-104, if a website has a tool that allows the user to choose how these records are accessed, the option selected by the user will always control, even if the Will, Power of Attorney, or Trust instrument contradicts that choice. This means that if you choose not to allow your fiduciary to have access to your online accounts on a particular website, that choice will stand even if your Will has a general provision allowing your Personal Representative to access your Digital Assets when you die. If, however, a website does not have such a tool, then the provisions of your estate planning documents will control.

Even if you have made your selection with an online tool or provided directions to your fiduciaries in your estate planning documents, under §10-106 the company that runs the website still may decide whether the fiduciary will get full access to the account or partial access to only achieve “the task with which the fiduciary or designated recipient is charged.” If a fiduciary is attempting to get access to the “content of electronic communication,” §10-107 requires the fiduciary to provide to the company several documents including a written request for access, a death certificate, letters of appointment and evidence showing that the user consented to the access.

After reviewing the relevant provisions of the new law, it should be clear that even explicit directions to your fiduciary regarding your digital assets in your Will, Power of Attorney, or Trust instrument may not be enough to ensure that your wishes are honored. The best way to ensure that your fiduciary has timely, efficient access to the digital assets that you want eliminated or maintained is to keep an accurate, curated list of these assets along with the login and password information. At Jones, Kuriloff & Sargent, LLC we know that digital assets are an important part of our client’s lives; therefore, we have created a template called a “Digital Assets Memorandum” that should help you to organize this information. If you are interested in reviewing this template and getting started with the preservation of your digital assets, click on the download link below and follow the directions on the worksheet.