Most of us when asked to identify our “assets” will easily recall those items of real or personal property which can be seen or touched; i.e., our home, vehicles, jewelry, etc. With a little more thought we are likely to summon to mind our bank accounts, certificates of deposit, stock portfolios, retirement plans and 401(k) accounts as being among our assets. Relatively few people, however, are apt to identify their “digital assets” as property of value. “Digital assets” refers to email and internet accounts, websites, domain names and photos or videos stored on personal computers or “in the cloud”. Yet, who knows, the next great business plan or design may presently reside in complete anonymity somewhere within your electronic files.
Consider for a moment that your digital assets may include property you own which has substantial economic or sentimental value. Consider also that this valuable property may remain undiscovered and forever undiscoverable were you to pass away unexpectedly. Should that happen, would your loved ones know what treasures lie buried in your laptop or enveloped out there in the cloud? If they do, would they be able to access them? Now, perhaps, those hidden treasures can be found and perhaps utilized by those to whom you leave such bounty.
If, like me, you enjoyed childhood tales of pirates searching for buried treasure, let me suggest we may now have a map of sorts to uncover treasures buried in cyberspace. I refer to the Revised Uniform Fiduciary Access to Digital Assets Act which has been adopted by twenty (20) states including both Oregon and Washington. The Act will take effect here in Oregon on January 1, 2017. Thereafter, the personal representative you name in your will can access your digital accounts after you have died to the same extent you could were you still alive.
The Act’s drafters no doubt understood that some folks might be less than enthusiastic about allowing their loved ones to have access to their email communications postmortem. The Act allows you to leave specific directions in your will prohibiting such disclosure. So, although the Act is intended to facilitate a fiduciary’s ability to discover and manage digital assets, it also respects the account owner’s reasonable expectations of privacy.
For a more detailed explanation of the Act, review the prefatory note prepared by the commission which drafted the model act. We will be interested to watch and see whether this new Act aids in unlocking hidden treasures.
© 10/6/2016 Charles A. Ford of Hunt & Associates, P.C. All rights reserved.