What happens to your digital online content when you are incapacitated or die? Perhaps you, like many, haven't thought much about what would become of those assets. But like other assets, your electronic data may be valuable to the people in your life. While the law is well-established regarding your fiduciary's access to tangible property, the law surrounding access to digital information is a relatively new area. Fortunately, the law has caught up with the technology.
Through model legal
language, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA),
has been adopted into law by almost every state (including Minnesota). This law
allows your digital assets to be accessed and managed by your named
fiduciaries. If you have appointed agents to act on your behalf over your
tangible property--by means of a power of attorney, will, or trust--those agents can likewise act on your behalf in dealing with the custodians of your online digital data in order to gain access.
RUFADAA defines a "Custodian" as a person that carries, maintains, processes, receives, or stores a digital asset of a user. These custodians include entities such as Google, social media platforms, cloud storage services, web-hosting services, email platforms, and other user accounts.
Digital property access in a power of attorney.
If you are using a Statutory Short Form Power of Attorney and you have elected to grant your Attorney-in-Fact all powers under Section 523.24, subdivision 1-14, then your Attorney-in-Fact will automatically have access to your catalog of electronic communications, such as computer files, web domains, and virtual currency.
However, if you wish to
grant your Attorney-in-Fact access to the content sent or received by you,
such as emails, text messages and social media accounts, the Statutory Short
Form Power of Attorney does not provide for such access. In this case, you
would need to either execute a General Power of Attorney with language expressly
granting such authority, or a Digital Property Authorization to be
used in conjunction with your Short Form Statutory Power of Attorney.
Digital access in your estate plan.
Do you want to grant the Personal Representative of your Will or Trustee of your Trust access to preserve and maintain your digital content, such as photos, video, documents, etc., for your descendants to enjoy? Alternatively, if your digital content includes sensitive or proprietary information perhaps you would wish to prohibit your Personal Representative from accessing the content. As is the case with tangible property, with digital assets the choice of disposition is yours and you should clearly set forth your wishes as to the retention or disposal of those digital assets in your estate plan.
Keep an inventory of your digital property.
Start by making a list of the places where you have digital content stored. Write down each location, including the URL, the type of content stored there, and the necessary login information your fiduciaries will need in order to access it. Keep this list in a safe place along with your other legal documents, such as in a file cabinet or safe deposit box. For obvious reasons you should never store this list online or on a computer or other electronic device!
Protecting and preserving your digital content is something that should be incorporated into your estate plan. Consulting the advice of a qualified attorney is a wise idea to get this started.