Guidance for Fiduciaries Regarding Digital Assets
When you think of assets, what springs to mind? If you're like most people, the answer is bank and investment accounts, real estate, and other tangible things with financial value. But you have other things of value that you can't put your hands on—that is, unless your hands are on your computer, phone, or tablet. In other words, your so-called "digital assets."
A decade ago, few people thought about digital assets. But now, when so many people have a social media presence on multiple platforms, and manage much of their financial life online, management of digital assets is increasingly important. And if you are not able to manage your own digital assets, either after your death or because you have been somehow incapacitated, what guidance is available for the person charged with doing so--your fiduciary? Or, what if you happen to be a fiduciary, in charge of managing assets or making decisions for someone else's benefit? What rights and limits do you have to access someone else's digital assets?
Managing Digital Assets for Someone Else
There are a number of scenarios in which you might act as a fiduciary with regard to another person's digital assets. One is if you are the personal representative of a deceased person's estate, managing assets for heirs. Another is if you are acting as trustee of a trust. You might also need to manage another person's digital assets if you were acting as their agent under a power of attorney, or as their court-appointed guardian or conservator.
Ohio, like the majority of other states, has adopted the Revised Uniform Fiduciary Access to Digital Assets Act (Revised UFADAA). The Act balances the joint interests of preserving privacy and the need for fiduciaries to have appropriate access to financial accounts, e-mail accounts, social media, and documents stored online.
The Act provides internet users with a number of options. If a company that stores the user's digital assets on its servers (the custodian) offers a tool for doing so, the user can designate who is allowed to access those assets. If the user declines to use the tool or the custodian doesn't provide one, the user can give enforceable instructions about access to digital assets in their estate planning documents (will, trust, or power of attorney). If the user does not give instructions in his or her estate plan, then the terms of service agreement of the relevant website will govern. If that document does not speak to the issue of fiduciary access, then the default terms of Revised UFADAA will apply.
Ohio's new law allows internet users, especially those who manage most of their financial lives online, to plan for the future management of digital assets. Importantly, it provides a system for dealing with conflicting instructions, which can lead to tremendous frustration for fiduciaries.
Planning for the Future of Your Digital Assets
If you are able to designate online who should have access to your accounts in the event of your death or incapacity, you may wish to do so. If you prefer not to act on a site-by-site basis, as this requires, it may be simplest to incorporate your wishes into your estate planning documents, and to review them regularly along with the other directives those documents contain.
Estate planning attorneys are encountering, more and more frequently, clients who are concerned about everything from who will be able to post a final message on their Facebook account to who will be able to access their retirement account online. An experienced Ohio estate planning attorney can help you plan for your digital assets as well as your tangible physical ones.
If you are charged with managing digital assets for a friend or loved one, contact an experienced Ohio probate attorney to learn how Revised UFADAA applies in your circumstances.
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