As is often the case, sometimes it takes a while for the law to catch up with society’s technological advances. Since the Internet is invisible, most people forget that their intangible digital assets are just as real as their tangible personal property. Currently, there are an estimated thirty million Facebook accounts that belong to people who are deceased. According to McAfee, in 2011 American consumers valued their digital assets, including online gaming, photos, music, client lists, bank accounts and bill-paying accounts at an average of $55,000 per person. And yet, few people plan for what will happen to those digital accounts when they die. Only a handful of states have addressed the ability of fiduciaries to handle and/or close down a decedent’s or incapacitated person’s accounts.
As a result, the National Conference of Commissioners on Uniform State Laws has recently released a draft of the “Fiduciary Access to Digital Assets Act” (the “Act”), which addresses this problem by proposing uniform language that gives a “fiduciary,” meaning a personal representative, conservator, guardian, agent, or trustee, the same authority as the account holder. Early comments received by the Committee expressed concern that the Act is overly broad and would result in privacy violations. It may take some time before this Act is finalized, and particularly before Ohio either adopts this legislation or some version of its own. In the meantime, as part of your estate planning process, it is important to consider maintaining your passwords and accounts in a secure place, and let your trusted fiduciaries know how to access that information in the event that they needed to do so.