Posted on Aug 03, 2016 by Marshall T. Minton
Our online presence can live forever. The internet is packed with Facebook pages, Twitter accounts and neglected blogs that have outlived their makers. With the increasing presence of technology in our lives, we often a leave behind a plethora of digital assets without any guidance to our fiduciaries about what they are and how to access them. Digital assets include our smartphones, tablets, personal computers, social networking site, email accounts, electronic access to our financial and insurance information, online accounts that hold a cash value such as PayPal, url addresses, blogs, and files, pictures, videos stored on the cloud. Often, these digital assets are held by a third-party custodian, and gaining access in the past has been a daunting process if the deceased didn’t have the foresight to ease this process in estate planning.
Fortunately, South Carolina passed legislation this summer that provides a pathway for fiduciaries to access the digital assets of deceased or incapacitated family members. Called the Uniform Fiduciary Access to Digital Assets Act, it sets out a process for personal representatives and others with power of attorney or fiduciary powers to view these accounts. Custodians of accounts must comply with requests to view accounts so long as access has not been eliminated by the account user, federal law, or by a separate terms of service agreement with the user.
What the law allows
The law grants a fiduciary authority to:
What the law doesn’t allow
Don’t take shortcuts
While some people might be tempted to hack into a deceased relative’s accounts or rummage through a desk for a list of passwords, that’s not a good idea. Under the federal Computer Fraud and Abuse Act, it’s a crime to go into someone’s computer or digital accounts without permission. Throw in a little family drama and control issues, and people just trying to do the right thing by getting quick access to a bank account to pay bills could find themselves with big headaches.
Digital assets need to become a part of the conversation with regard to estate planning. While the new act helps provide some guidance when it comes to access to these assets, it is still a good idea to create an inventory of these digital assets as well has keep a list of usernames and passwords in a safe place where your fiduciary has access upon your death or incapacity.
Marshall T. Minton is an attorney with Turner Padget (Columbia, S.C.) who counsels businesses in a variety of industries on succession planning, estate planning and related matters. She may be reached at (803) 227-4249 or by email at firstname.lastname@example.org.