August 11th, 2016

The proliferation of computers and smartphones coupled with the explosion of wireless internet access over the last decade has seen even the least tech-savvy among us amass a considerable amount of digital assets from emails and social media accounts to digital pictures and assorted media files.

Curiously, while our presence in the digital world has continued to evolve, the area of probate law has largely failed to keep pace. Indeed, the granting of access to and division of digital assets upon the death of their owner has emerged as a source of confusion for not just loved ones and tech companies, but the courts as well

In recognition of this problem, State Rep. Anthony Forlini recently introduced House Bill 5034, otherwise known as the "Fiduciary Access to Digital Assets Act." The law, which was signed by Governor Rick Snyder this past spring and is now in effect, is designed to introduce some much-needed clarity into this otherwise murky area.

What does the law do?

The law enables a person to grant access to digital assets to a designated personal representative in the event of death or incapacity. Furthermore, it allows them to specify -- or prohibit -- the types of digital assets that can and can't be released to the personal representative.

What exactly constitutes a digital asset?

The law defines a digital asset as "as electronic record in which a user has a right or interest." In other words, it's social media accounts, email accounts, pictures, media files and online access to any designated aspect of a person's digital life.

What does the personal representative have to do to gain access to digital assets?

The law establishes that personal representatives will have to present the following when attempting to secure access to digital assets from digital custodians (i.e., those holding and/or managing the digital assets):

  • A written request for the disclosure in either electronic or physical form
  • A copy of the death certificate
  • A certified copy of the letters of authority, small-estate affidavit or court order
  • Any other information that the digital custodian is authorized to request under the law, including account identification information and evidence otherwise linking the deceased/incapacitated to the account

Will this law -- and others like it -- prompt tech companies to make changes?

Experts indicate that these laws will likely prompt more tech companies to introduce online forms that allow users to establish how they want their accounts, etc. managed in the event of death or incapacity.

Indeed, companies like Facebook already have such forms available and those who fill these out should be aware that they supersede any designations made in an estate plan concerning digital assets.

If you have questions or concerns regarding this new law or about estate planning in general, consider speaking with an experienced legal professional.

Categories: Estate Administration & Probate