More and more of our business and personal interactions are conducted online. We expect that our online communications are private; less so for social media than for, say, online banking.
What happens to these accounts if we get sick or die? How do our fiduciaries access the information necessary to pay bills or settle our estate?
The Michigan legislature addressed these issues in late 2015 with passage of the “Fiduciary Access to Digital Assets Act.” Under the Act, each of us may authorize our “fiduciaries” (the agent in our power of attorney, personal representative in our will, and trustee in our trust) to interact with our digital custodians.
The Act permits our fiduciaries to access our email, blogs, social media accounts, financial accounts, digital files (music, photos, movies), and even the contents of our electronic communications. Without such powers digital assets would continue to exist after death or disability but nobody would be able to access, modify or delete them. Most accounts and files would just continue untouched until the company that manages them (the “digital custodian”) terminates the account, at which point all data would be lost.
If the digital custodian provides an “online tool” (Facebook, for example, allows users to name a Legacy Contact), fiduciaries you appoint using such tools take precedence over those appointed in your estate planning documents.
We at Accettura and Hurwitz are in the process of amending our master estate planning documents to reflect the new law and to grant expanded digital authority to fiduciaries. It is still important, however, that you identify your various online accounts and passwords so that your power of attorney or personal representative can simply access the accounts without asking for permission. For recent estate plans, we have included a “Digital Asset Memorandum” in the Ancillary Documents tab of your folio.