In Perspectives

Michigan legislators just recently passed the Fiduciary Access to Digital Assets Act.  This new law provides you with the ability to name someone that can have access to your digital assets when you die.  Additionally, you can restrict who can access – and even know about – the same.

Why is this important?

When you sign up for online accounts you usually have one of those “check the box” agreements (“terms-of-service” agreements).  These agreements are very specific as to what you can/cannot do with the account, and who can access your account.   For example, the Facebook terms of service agreement flat-out states that “you will not share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account.”  Prior to passing this law, it was a gray area as to who could access your accounts after your death – if anyone.  This can be very concerning if you have an account that stores things that may have sentimental value, such as pictures or emails.

Additionally, the ability to block disclosure or access is a big deal.  This may be of more importance if you have strained family relationships – you may not want certain members of your family to have access to your social media or email accounts.  Also, the ability to only grant partial disclosure or access may be important to you.  You can specify if the fiduciary can see pictures, but cannot see emails for example.

How do you take advantage of it?

There are two ways for you to name someone with authority over your digital assets:

First, if the digital custodian (i.e. Facebook) provides an “online tool” where you can direct who can access the digital assets (including electronic communications), the individual can use that.  If that “online tool” can be changed at any time, then this controls – meaning that if you put something different in your estate plan, the online tool designation trumps that.  Staying with the Facebook example, it does provide an “online tool” – you can name a “Legacy Contact” to be able to access your account, download an archive of the pictures, posts, and profile information.

Second, if there is not an “online tool” option, you should address this in your estate planning documents (will, trust, power of attorney, etc.).  You can state in those documents who the digital custodian can disclose or not disclosure to; this person would either be a fiduciary (i.e. PR or Trustee) or a “Designated Recipient” with access to some or all of your digital assets, including electronic communications.

*Keep in mind, if using both the online tool and estate planning documents (which you will likely have to do), the online tool deciders.

Final thoughts?

When thinking about your legacy, and what you leave behind, you likely have a virtual existence on at least some level and this should not be forgotten.  Take some time to explore the “settings” on each of your digital accounts and see if they provide an “online tool” to provide authority to someone to access it.  Then give your estate planning attorney a call and see what their suggestion is for the best way to cover all your digital assets.