State lawmakers in Delaware recently adopted new legislation that might be the first of its kind to address the issue of digital asset control and access issues that many people across country have questions about. In recent years, the prominence of digital assets in estate planning has continued to increase as the role of computers, smart phones, and the Internet has crept ever deeper into our daily lives. Though this law only applies to residents of the state of Delaware, it could be a sign of things to come because these issues exist for people developing an estate plan across the country.
Digital Assets and Information
A digital asset is almost anything you have on your computer, cell phone, the Internet, or any other kind of technological device. Some digital assets, such as family photos or personal e-mails, can have little or no monetary value, but can nevertheless be extremely important. Other assets, such as online bank accounts or online businesses, can have a high dollar value and can require some significant effort to properly protect through your estate plan.
But what happens to your digital assets should you become incapacitated or die? If, for example, you have named an executor of your estate through your last will and testament, will that executor know what digital assets you have? Even if the executor knows what you have, will he or she be able to access those assets?
The answer to these questions is not always clear, especially when you consider the policies and rules that many tech companies have. Some companies, such as Facebook and Twitter, have specific prohibitions against others accessing your digital assets. If you become incapacitated or die, your executor or other representatives might have difficulty in trying to gain control of, or access to, your information and your assets.
Digital Access Law
The new Delaware law is based on model legislation developed by the Uniform Law Commission. The commission is a nonprofit organization whose members include judges, lawyers, and law professors. The organization discusses important legal issues and drafts model laws that state legislatures can adopt. These model laws are designed to provide a uniform legal foundation across the country as legislators of multiple states adopt them.
The “Fiduciary Access to Digital Assets and Digital Accounts Act” that Delaware recently passed gives fiduciaries and estate representatives the right to access digital assets in the face of incapacitation or death. The law currently only applies to Delaware residents, but it is possible, and perhaps even likely, that in the coming years more states will adopt similar types of laws. Until that happens, however, Florida residents need to talk to their estate planning lawyers about the steps they can take to protect their digital assets now.
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