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Digital Assets and Death (Katie Watson Expert Advice)

4 min read

Digital assets are pervasive in today’s society. Many people have gone paperless, uploading financial information, photos, passwords and other personal information to Google, iCloud, Dropbox and other similar digital storage websites. Even those who label themselves “technologically challenged” most likely have an email address and social media account. What happens to digital assets when an individual becomes incompetent or dies?

This spring, the Arkansas Legislature enacted the Revised Uniform Fiduciary Access to Digital Assets Act. The act sets the rules of engagement that fiduciaries — such as agents, guardians, personal representatives and trustees — and custodians of digital assets are to follow when a fiduciary seeks to access or view a user’s digital assets.

In general, users are given the power to manage and dispose of digital assets as they would any other assets. Upon the incapacity or death of the user, the act gives the user’s fiduciary the following powers:

• If the custodian of the digital asset provides an online tool under which the user can specifically set forth the people who can access digital assets and the extent to which such individuals can access digital assets, then such instructions will apply, regardless of what is stated in the act or the user’s power of attorney, will, trust or other written document. Note that a boilerplate terms-of-service agreement does not qualify as an “online tool.”

• If the custodian does not provide an online tool or if the user fails to use the online tool, then the instructions set forth in the user’s power of attorney, will, trust or other written document will dictate whether and to what extent the fiduciary can access the user’s digital assets.

• If the user fails to provide direction in a power of attorney, will, trust or other written record, then the terms-of-service agreement for the user’s account will determine whether and to what extent the fiduciary can access the user’s digital assets.

Note that unless the user specifically consents to disclosure of the content of his digital assets — for example, the body of emails — the custodian is only required to disclose the existence of the digital asset and an electronic catalog of the user’s communications — for example, account access dates, to/from information, etc.

In order to access a user’s digital assets, the act requires the fiduciary to submit to the custodian a written request specifying what the fiduciary wishes to obtain and a certified copy of the document granting the fiduciary the authority to access the digital assets — for example, a copy of the user’s power of attorney or trust or, in the case of a deceased user, a copy of letters testamentary for the user’s estate.

On receipt of such documentation, the custodian may, at its discretion: 1) grant the fiduciary full access to the user’s account; 2) grant the fiduciary access to the user’s account as needed to perform the fiduciary’s duties; or 3) provide the fiduciary with a copy of any digital asset that, on the date the custodian received the disclosure request, the user could have accessed if the user were alive and had full capacity to access the account.

The act does not apply to digital assets of an employer used by an employee in the ordinary course of the employer’s business — for example, work email — or to deleted digital assets.

The custodian is required to comply with a request made under the act within 30 days of receiving the documentation required under the act and can charge a reasonable fee for disclosing digital assets.

If the custodian refuses to comply with a valid request, the fiduciary may seek a court order requiring the custodian to comply with the act. A custodian may deny a request if it has reasonable grounds to do so. A custodian and its officers, employees and agents are immune from liability for an act or omission done in good faith in seeking to comply.

In light of the passage of the act, users of digital assets should review the privacy settings for their online accounts and determine if there is an online tool under which they can specify who can access such accounts and under what conditions they can do so. Users should also review their estate planning documents to ensure that their fiduciaries are given specific authority over their digital assets.


Katie Watson is an associate in the Trust & Estate Planning Practice Group at Friday Eldredge & Clark. Email her at KWatson@FridayFirm.com.
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