More states are starting to address a growing area of an individual’s estate: Digital assets.
Last year North Carolina was slated to amend the durable power of attorney and estate administration laws to include power to manage digital assets, but the provisions did not pass. This past summer the Uniform Fiduciary Access to Digital Assets Act (UFADAA) was released by the Uniform Law Commission as a model for states to use when revising legislation. Only a month after the Act was presented, Delaware became the first state to adopt the modeled law.
A key limitation under the UFADAA is the lack of control. An appointed agent or fiduciary is permitted access to the account owner’s digital assets, but the agent will not have control over digital assets. This limitation is included to comply with privacy laws. Under the Act, the agent will not have power to transfer, copy, or distribute assets. Without the Act or proper provisions in a Will, executors who access a decedent’s accounts are essentially committing crimes and violating various online terms of service agreements.
States who adopt the Act would provide agents with the legal authority to access a decedent’s (or incapacitated person’s) digital accounts for the purpose of carrying out their responsibilities as executor. Creating an inventory of assets is one responsibility of an executor. An inaccurate inventory could develop without access to digital accounts like e-mail with bank account and credit card statements, PayPal accounts with open balances, and other similar services. Information about these accounts is critical when paying off a decedent’s debts, calculating the value of an estate, and determining what will pass on to beneficiaries.
Curious what you can do to preserve your digital assets for loved ones? Make a list of all digital accounts, usernames, and passwords. Keep the list in a secure place, like a safe deposit box, and keep an updated copy with your lawyer. An up-to-date list of digital assets can save family members a great deal of time and stress in the event an individual becomes incapacitated or passes away. Most importantly, discuss options with your estate planning attorney
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