In today's digital world, many clients are beginning to ask questions like, "What happens to my accounts on the Cloud, like my iTunes and Instagram accounts, when I die?" and "Will the executor of my estate have access to these accounts?". The answers to these questions depend upon the policy of the company that manages the account of the digital asset and where you live. The policy is set forth in the company's terms-of-service agreement – that is, the agreement that you click through without reading when setting up an account. For example, see the iCloud terms-of-service agreement.
If your agreement is silent on the issue, then state law controls. Currently, very few states have enacted legislation which deals with fiduciary access to digital assets. The Uniform Law Commission, which is a group that proposes new legislation for states to follow as a guide, recently approved its new act, The Uniform Fiduciary Access to Digital Assets Act (the "Act"), to help states address these issues.
The Act takes a very simple approach. It basically provides a fiduciary with same rights of access to the digital assets as the original account holder. The types of fiduciaries covered by the Act include the personal representative of a decedent, a principal under a Power of Attorney (if the Power of Attorney expressly grants the authority), the conservator or guardian of an incapacitated person's or minor's estate (with court authorization), and the trustee of a trust. However, the original account holder can limit the fiduciary's access to the digital asset by providing so in his or her Will or trust, or in an affirmative act that is separate from the account holder's assent to the company's general terms-of-service agreement. In addition, the Act gives the fiduciary access to any digital asset on a laptop, smartphone, or other device that has storage media on it.
Shortly after the Act was approved, Delaware passed the "Fiduciary Access to Digital Assets and Digital Accounts Act" (See Philadelphia Inquirer Article and Delaware Act). Although Delaware's law does not appear to be directly based on the Act, it accomplishes the same objectives. It gives personal representatives, guardians, agents under Powers of Attorney, and trustees control of the digital assets and digital accounts of the account holder. However, there are some differences, including that: (1) a guardian doesn't need court authorization as he or she does under the Act and (2) a Power of Attorney doesn't need to have an express grant of authority as it does in the Act.
It is important to keep in mind that, if the digital assets are subject to a terms-of-service agreement, what the agreement says and what happens in reality may be two different matters. For example, the iCloud terms-of-service agreement states that the account is non-transferrable upon death and that the rights to your content terminate on death. However, an Apple representative verbally informed me that an Executor can transfer ownership of all of the content to an heir. Obviously, this conflicts with the terms-of-service agreement.
In addition, it is critical to remember that the Act or terms-of-service agreement only addresses access to the digital asset, not what happens after the fiduciary gains access to the asset. The fiduciary is still bound by the terms of the governing document, whether a Will or trust, in disposing of the digital asset. As digital assets become more valuable, either for monetary or sentimental reasons, it will be interesting to see how often they become subject to disputes. Therefore, if digital assets are important to your clients, you should consider specifically addressing them in your client's estate plan.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
