Hubbell DuVall

Considerations when Estate Planning for Digital Accounts and Assets

Estate planning for digital accounts and assets can be a complicated topic. Society has converted substantial portions of its data to digital, and now “cloud” storage, which allows us to access our stored media anywhere. While these options have no shortage of advantages, like allowing us to store massive amounts of data, media, and memories, they also have their share of pitfalls. In 2013, Google became the first major internet company to allow users to select digital heirs for its Gmail, cloud storage and other services. Subsequently, Facebook began to allow its members to designate a “legacy contact” to manage parts of their accounts upon the member’s death. Twitter considers requests from family members to delete upsetting images of users who have died, but the company does not honor every request, especially if the images are newsworthy. LinkedIn also allows family members of the deceased user to delete the account, as does Twitter. In most cases, the companies required a death certificate and confirmation of the relative’s identity.

Utilizing these types of designations can help bring clarity to an issue that can be emotionally and legally challenging for many families. But not all online service providers currently offer such designations and, in this digital age where many of us have more online accounts than we can keep track of, it can be hard to develop a unified plan for our accounts post-death. For the last decade, states have passed laws addressing digital assets in a piecemeal fashion. In 2005 Connecticut was the first state to address the digital asses of decedents.[1] Since then, several other states including Delaware,[2] Idaho,[3] and Nevada[4] passed laws granting a decedent’s fiduciary varying levels of access to and control of digital assets.

In 2014, the Uniform Law Commission issued the Uniform Fiduciary Access to Digital Assets Act[4] spurring 13 states, including Michigan, to adopt it into law.[5] Digital assets can potentially have both monetary and sentimental value and also present novel issues regarding a decedent’s privacy.
Michigan recently enacted the Fiduciary Access to Digital Assets Act (“the Act”),[6] effective June 27, 2016, in response to a growing trend across the country, and more specifically to Michigan, a 2005 case of a Marine killed in Iraq. In that case the Oakland County Probate Court ordered Yahoo! to turn over the emails from the account to the deceased’s parents. It is worth noting that Yahoo! was never required to, nor did it, grant access to the account to the estate; instead it produced a CD with the emails and offered to produce paper copies for the family as well.

The Act essentially codifies the rights and duties of three parties as to a digital asset, or electronic record in which a user has a right; the “user,” is the owner of the digital asset, the “digital custodian” is the entity that “carries, maintains, processes, receives, or stores a user’s digital asset,” and the “fiduciary” is the personal representative, conservator, agent, or trustee. The Act does several things including:

  • Allowing a user to use an online tool to direct a digital custodian to disclose or not disclose certain digital assets to a designated recipient;
  • Allowing a user to use a will, trust, power of attorney, or other instruction to allow or prohibit discloser of the user’s digital assets to the fiduciary designated by the document;
  • Establishes the duties of the digital custodian regarding disclosure of digital assets;
  • Establishes the procedures for disclosure of digital assets to a personal representative of the user’s estate, an agent with power of attorney, a trustee, or a conservator;
  • Establishes the duties of the fiduciary in managing the user’s digital assets once they are disclosed;
  • Establishes a digital custodian’s responsibilities to comply with the Act; and
  • Establishes an interested person’s right to file a petition with the proper court regarding disclosure of a digital asset under the Act.

The Michigan Fiduciary Access to Digital Assets Act gives the fiduciary authority to administer the user’s digital assets in accordance with the user’s wishes, just as the user’s tangible assets are administered in accordance with their estate plan.

For more information about the Act and how to incorporate it into your new or existing estate plan, call us to set up a convenient consultation.

[1] The ULC then revised the UFADAA in 2015 to address a variety of oversights.

[2] As of the writing of this article, an additional 18 state legislatures have introduced the UFADAA.

[3] Michigan Public Act 59 of 2016 was signed into law by Governor Rick Snyder on 3/29/2016.

[4] Conn. Gen. Stat. § 45a-334a grants the executor or administrator of the estate of a deceased person access to, or copies of, the decedent’s electronic mail only.

[5] Del. Code tit. 12 § 5001, et seq. allows fiduciaries access and control of the decedent’s digital assets and accounts.

[5] Idaho Code § 15-3-715(28) allows a fiduciary to “take control of, conduct, continue or terminate any accounts of the decedent on any social networking website, any microblogging or short message service website or any e-mail service website.”

[6] Nev. Rev. Stat. § 143.188 limits the fiduciary’s power to ordering the termination of the types of digital assets enumerated in the statute.