A friend of mine told me recently that if he were to kick the bucket right now, his assets would include a PayPal account with a balance of $10,000; About $2,000 in Bitcoin; 500 copyrighted photos on Instagram; digital invoices to clients for about $30,000; points earned on a number of online shopping sites; and credits on several online video games entitling him to purchase digital goods to upgrade his online avatar.
In my own case, virtually all of my client files over the last decade are in electronic form, consisting of thousands of email exchanges on Gmail and other email accounts, and tens of thousands of Microsoft Word documents. Who would have access to those if I were to die tomorrow? To whom would they be transferred, and how? Who decides whether the account can be terminated or the content erased? Would my Internet hosting service cooperate and allow my account to be transferred?
Up to now, the answer to these questions lay in the fine print of the “terms and services” document you signed with your Internet hosting service, PayPal or website when you first opened your account. If that document did not contain specific language dealing with the transfer of your account (and its contents) upon your death, 19 states have adopted laws allowing your executor (the person responsible for handling and disposing of your assets upon death) to access your digital accounts upon the presentation of a death certificate to the website or hosting service where the account is maintained.
For an excellent state-by-state summary of these laws, see https://www.everplans.com/tools-and-resources/state-by-state-digital-estate-planning-laws.
In July 2014, the National Conference of Commissioners on Uniform State Laws published the Uniform Fiduciary Access to Digital Assets Act. Delaware has adopted the USADAA, but it is being introduced in many state legislatures and is likely to be adopted by most states within the next year. The USADAA does not determine how your digital assets will be disposed of when you die — that is left to traditional trusts and estates law. So, for example, if you die intestate (without a will), your digital assets will be distributed to your heirs under your state’s intestacy law, the same as your physical assets.
What the USADAA does do is enable your fiduciaries to access your digital assets upon your death, so that they can dispose of them as the law requires or as you designate in a will, living trust, or similar document. In addition to executors, fiduciaries include conservators appointed by a court to handle your affairs if you are mentally incapable of doing so, and agents under a general power of attorney (although there are some restrictions here — under USADAA an agent cannot view the content of your emails without a specific instruction in the power of attorney to do so).
The law defines digital asset as “a record that is electronic,” but does not include “an underlying asset or liability unless the asset or liability is itself a record that is electronic.” So, for example, under USADAA your executor could access your PayPal account upon your death, but would not have the ability to withdraw the $10,000 cash balance in your account. The USADAA also applies to electronic communications such as email accounts and the catalogues (records) of your email or online activity. It specifically provides that your fiduciary can access all of your digital assets, email accounts, social media pages (even private ones) and all other online presences. The law also voids any terms in a website’s Terms of Service or User Agreement that limit a fiduciary’s access to your online account. You are allowed to make a separate agreement with the website that is outside of the boilerplate Terms of Service as long as you do so after your state enacts the USADAA. The USADAA does not require you to prepare a list of all of your online accounts, although it’s a good idea to do so (along with username and password information).
As states adopt the USADAA, it will be more important for you to specify in your will how you wish your digital assets to be treated when you die, and limit other people’s access to online content that may be controversial.