Fiduciary Access to Digital Assets
By: James C. Milton
Oklahoma is ahead of the curve on fiduciary access to digital formats, but could fall behind in the next year.
Digital assets are electronic records, inlcuding emails, social media postings, online music, and documents stored in the cloud. When a user dies or becomes disabled, his executor, trustee, guardian, or attorney-in-fact may need to access the user's digital assets. Some internet service providers address these issues in their terms of service. Often, the terms of service will conflict with state law, or with the user's estate planning documents.
In 2010, Oklahoma enacted a new statute providing that the executor or administrator of an estate can take control of the deceased person's accounts on "any social networking website, any microblogging or short message service website or any email service websites." This statute addresses some - but not all - digital assets that a user may own. In addition, the statute applies only to executors or administrators of estates. The statute does not address whether a trustee, guardian, or attorney-in-fact may access digital assets.
In 2014, the Uniform Law Commission recommended a uniform act that would address these issues. A number of states' legislatures considered the 2014 uniform act. But the proposal met strong resistance from internet service providers based on privacy concerns, conflicts with terms of service, and concerns based upon federal law.
In 2015, the Uniform Law Commission went back to the drawing board. After negotiations with internet service providers, the Commission recommended a revised uniform act that addressed the service providers' concerns.
The revised uniform act specifically allows for an online tool to provide the service provider with directions regarding handling and disposition of the user's digital assets. Facebook recently introduced an online tool allowing users to desginate a "legacy contact," who would handle the account upon the user's death. If the user does not use the online tool, or if the service provider does not provide a tool, then the user may provide specific directions in her will, trust of power of attorney. These methods of access will override contrary provisions of terms of service agreements.
Under the revised uniform act, internet service providers will retain authority to determine how the digital assets are provided. A fiduciary will be bound by the same terms of service that applied to that user.
Next year, Oklahoma should take a step forward and remain on the cutting edge of fiduciary access to digital assets.