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California Legislature May Approve “Digital Assets” Legislation

Estate planning is typically concerned with a person’s tangible possessions and assets. But in the modern age when more of our lives exist online, how does estate planning deal with so-called digital assets? The California legislature may attempt to answer that question in a bill now pending before the state Senate.

When you sign up for an online service like Google, Facebook, or Twitter, there are “terms of service” set by the provider that may explain what happens to your data in the event of your death. Facebook, for example, allows its users to provide instructions to “memorialize” or delete an account upon death. A memorialized account maintains the user’s data—photos, messages, et al.—but otherwise prevents anyone, including the personal representative of an estate, to access the actual account.

As the law in California presently stands, there is no uniform rule for how online service providers must deal with the post-death disposal of a user’s digital assets. California Assembly Bill 691 (AB 691) would change that. The bill, which was approved by the Assembly last year and recently cleared a Senate committee, would adopt a version of the Fiduciary Access to Digital Assets Act, a model law already adopted by about a dozen states.

The key provision of AB 691 states that a user of an online service may direct the provider—the “custodian” of the digital assets—to “disclose to a designated recipient or not disclose some or all of the user’s digital assets, including the content of electronic communications,” such as emails or text messages. More importantly, at least for estate planning purposes, if the custodian’s online tool allows the user to “modify or delete a direction at all times,” then said instructions will override any contrary directive contained in the user’s will, power of attorney, or similar document. In other words, if you instruct Facebook to delete your account upon death, that instruction remains legally binding, even if your will says something different.

However, if you did not leave any instructions through the service provider’s tool—or the provider has no policy in place regarding disposition of digital assets—then AB 691 would make any instructions in a will or power of attorney binding. Such instructions would override the custodian’s terms of service. But if the user left no instructions of any kind, either through an online tool or an estate planning document, then the custodian’s terms of service would determine if anyone is allowed to access the account.

Get Help from a San Diego Estate Planning Lawyer

As of this writing, AB 691 has not been passed by the Senate or signed into law by Gov. Jerry Brown. But the legislation’s recent progress suggests that California will soon have some sort of law on the books related to the disposition of digital assets. This only emphasizes the importance of working with an experienced California estate planning attorney to prepare a will and other documents to ensure your wishes are carried out following your death. Contact the Law Office of Scott C. Soady in San Diego if you would like to speak with an estate planning lawyer today.

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