The state of Kansas recently enacted the Revised Uniform Fiduciary Access to Digital Assets Act. This act defines a “digital asset” as “an electronic record in which an individual has a right or interest.” I bet you use a digital asset every single day! Here are a few examples (and there are many others):
- Personal Files – photos, videos, emails
- Social Media Accounts- Facebook, LinkedIn, Twitter
- Financial Accounts – bank, PayPal, Venmo
- Domain Names/Blogs
- Loyalty Program Benefits – credit card points, frequent flyer miles
Not all states have adopted an act about access to digital assets. For example, while Kansas enacted its act earlier this month, Missouri has not yet adopted one (although a bill is now being considered). Digital asset laws are relatively new and only time will tell how they are interpreted and applied by the courts. But the goal is not to have the courts decide what should happen with your digital assets. Take control and start by addressing how you would like these assets dealt with in your estate plan.
Your estate planning documents – whether they include a power of attorney, will, trust, etc. – should provide clear instructions about who will be able to access your digital assets and what type of digital asset records they will be able obtain upon your death. Do you want them to be able to obtain the contents of your electronic communications or just a catalogue (date, time, name, and electronic address) of those communications? Or, do you not want anyone to be able to access your digital assets? If that is the case and you want your digital assets to remain private, then you should explicitly state that intention in your estate planning documents.
If you are currently working on your estate planning documents, then you will want to be sure your digital assets are addressed appropriately in the drafting process. If your estate planning documents are already in place, then you should consider updating them to cover your digital asset preferences. In both situations, it is critical that you work closely with your estate planning attorney to be sure your documents are appropriately drafted, updated, and executed.
And, perhaps most importantly, if a digital asset has an online tool that allows you to provide directions as to who can access your account and what account information they can obtain, that online tool direction needs to be consistent with the instructions in your estate planning documents. The online tool direction will control who can access and what can be obtained from that particular account upon your death, despite what your estate planning documents may otherwise state. So, as time goes on, it is imperative that if you have any changes to your digital asset preferences then those changes are made to both the online tool direction and your estate planning documents. Consistency is key!