What are your digital assets? What happens to your digital assets upon your death? Who has the authority to handle your digital assets if you are incapacitated or incapable of managing them?
Digital assets are content that is stored digitally. For example, digital photos, music and documents are digital assets. You could possess all of those things in their concrete form, but many people now store things digitally instead. How about the usernames and passwords for all of your electronic bank, investment and retirement accounts? The assets held in the accounts are not digital assets, because they exist in the “real world” just as bank accounts, investment accounts and retirement accounts have for decades. However, the usernames and passwords used to access those accounts are digital assets.
Are you authorized to access those digital assets through a power of attorney? As with all questions in the legal world, the answer is “It depends.” It depends on the language of the power of attorney – does that language even include digital assets? It depends on the terms-of-service agreements we have with the companies that store and/or actually own those digital assets. You know, those user agreements we all read very carefully before establishing a social media account, etc? The answer just may lie in those agreements.
What happens to your digital assets upon your death? You’re right – “It depends.” Does the administrator or executor of your estate have the right to access those digital assets? What does your Will say? What do those thoroughly-read terms-of-service agreements say? The reality is that many executors or administrators access digital assets without giving a second thought to whether it could be a problem.
Lastly – what does the law say? In Pennsylvania, the law was largely silent regarding digital assets until recently. Not long ago, Pennsylvania passed the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADA for short), which takes effect in January 2021. RUFADA provides guidelines for individuals to authorize agents, administrators and executors to access digital assets through on-line tools provided by the company or through wills, trusts or powers of attorney.
If you live or work in the central Pennsylvania area, including Mechanicsburg, Carlisle, Harrisburg, Hershey and surrounding communities and would like to discuss digital assets or any other family law or estate planning or administration issue, please contact me.