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Delaware Sparks National Debate Over New Probate Laws for “Digital Assets”

“Digital assets” remain an unsettled area of estate planning law. While it is long-established that a person may leave physical assets, such as books or photo albums, to someone else via a will or trust, that is not necessarily the case for digital copies of the same items stored in an email or social media account. In fact, many popular online services, like Facebook and Apple’s iTunes, expressly restrict a person’s ability to transfer their account to another person.

At least one state has taken a step towards liberalizing the rules governing digital assets after death. On August 12, Delaware Gov. Jack Markell signed the nation’s first law governing “fiduciary access to digital assets and digital accounts.” The new law requires an estate executor or trustee to “have the same access as the account holder” to online accounts owned by the deceased. The fiduciary may then order the service provider to copy, deliver or even delete the account in question.

The Delaware law is based on the Uniform Fiduciary Access to Digital Rights Act, a proposal adopted by the Uniform Law Commission (ULC), a nonprofit organization of legal professionals who draft and lobby for model state legislation. Delaware is thus far the only state to consider or adopt this particular uniform act.

It should be noted the Delaware law’s impact is limited to residents of Delaware. As a spokesman for Gov. Markell told the news website Ars Technica, “If a California resident dies and his will is governed by California law, the representative of his estate would not have access to his Twitter account under” the Delaware law. However, if a California resident created a living trust based in Delaware, and transferred his or her digital assets to said trust, the successor trustee might try to take advantage of this law.

It is unclear if or when California’s legislature might consider adopting its own version of the Delaware law. Suzanne Walsh, the attorney and ULC member who spearheaded the development of the model legislation, told Ars Technica that “California is the most important” state in influencing other states to act in this area.

But there are a number of issues for California officials to consider before following Delaware’s lead. For instance, there are concerns with giving executors or trustees access to a deceased individual’s email account, especially if that person held a sensitive position, such as an attorney or physician, which implicates the privacy rights of still-living clients. Although the ULC model act states fiduciaries should not be granted access to any such confidential communications, the potential for confusion must still be considered before California and other states act.

Even without formal legislation, California residents can still be proactive in addressing the future of their digital assets. The first and most important step is to review the terms of service (or license agreement) for any digital account you hold. Every company has a different policy regarding fiduciary access. Second, you should keep a list of any passwords or information needed to access your digital accounts in a secure location. Finally, you should periodically review your estate plan to ensure you have the proper fiduciaries in place to manage all of your assets, digital or otherwise. If you need assistance, please contact the Law Office of Scott C. Soady in San Diego today.

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