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Digital Assets Update: A New Kind of Property

So much of our lives is lived online, that we don’t give it a second thought—until a person with an active digital life passes away. Then what happens? According to this article from the American Bar Association’s Real Property | Trust and Estate Law Sectiontitled“Digital Property FAQs,”it’s not as simple as logging in using your family member or friend’s user name and password.

What happens to digital accounts after a person passes, depends upon the laws in your state and the terms of service the user agreed to when opening an account with each digital platform. Just because you are the executor or personal representative of the decedent, does not automatically give you access to their online accounts. The decedent must have given you specific consent following the rules of that social media platform.

As social media became more entrenched in our culture, the laws about their use and ownership have been developing. Little is simple anymore.

If you die in a state that has adopted the “Revised Uniform Fiduciary Access to Digital Assets Act”, which is something many states have done, your legal representatives will only have access to your accounts, if you’ve activated a setting within the account and provided a direction to disclose the contents of your account to your representatives. Alternatively, if your will specifically allows your legal representative to access your online accounts, your executor may be able to access your accounts.

If you haven’t provided consent in either of these two ways, then your executor will have a struggle ahead.

If you die in a state that has not adopted this law, then the social media platform’s rules will govern who has access to the account.

You cannot legally log into someone’s accounts just because you have the passwords and user names, if the terms of service governing the account prohibit it. Some online accounts say in the terms of service that only the original user can access the accounts, even if they are deceased!

Check with an estate planning attorney who understands the new laws concerning digital assets. You’ll want to address access to your digital property in your will and be sure that it includes online accounts and electronic communications. You should also check the settings on all your online accounts to direct the provider to release your digital property to your legal representatives and activate the setting.

Reference: American Bar Real Property|Trust & Estate Law(July 12, 2018) “Digital Property FAQs”

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