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Digital Account and Asset Access

As more pieces of our lives move online, new questions present themselves as we become incapacitated or walk on.

Have you given any thought to who gets your digital music library? Or, if you do all of your banking online, will your guardian/conservator be able to access those accounts and records to take over paying your bills?

The Fiduciary Access to Digital Assets Act, a uniform law now enacted by most U.S. states, was passed in Michigan in 2016. Its aim is to allow fiduciaries (guardian/conservator, trustee, or executor) access to “digital assets” while respecting an individual’s reasonable expectation of privacy in related communications, like email and electronic messages.

This law might be most important to you at present if you are named as a “fiduciary” and need to access such digital information.

What are “digital assets?” The Act defines them as “an electronic record in which an individual has a right or interest.” Think electronic – especially electronic-only – bank accounts, investments, digital music, videos, social media accounts, etc. Neither the act nor the definition give a fiduciary any more ownership or control over an underlying asset – the money in the bank account, for instance – than that representative already possessed. And of course there are platforms and accounts that we have not yet imagined that should be captured by the provisions of this act.

This Act might also prompt you to think about this issue: should your will direct your executor to close (and delete?) all of your social media accounts following your demise? Do you own any cryptocurrency (Bitcoin, Ether or Qtum)?

As we go digitally deeper, consider this from two angles: first, which of your digital assets do you want to make sure your spouse, your executor or your children have access to? Which accounts might you want to make sure no one has access to? Second, might you be a fiduciary for someone else? If so, will you need access to their electronic accounts and records? You might want to talk with them about it.

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