Have you ever wondered what happens to your digital assets when you die?
By digital assets I mean your email, Facebook, Twitter and other accounts. What about your iTunes music purchases? You Amazon Kindle books? Are you allowed to transfer your music to your beneficiaries?
How do you access your bank accounts or credit card accounts? How do you pay your bills? How do you get your bills? Do you still write checks?
Have you thought about what will happen with all of that when you die?
Who will have access to your email accounts? How will they get in? Will they be authorized? If your Personal Representative contacted Google and requested access to your email accounts, will Google comply?
How do the federal Electronic Communications Privacy Act (ECPA) and the Digital Millenium Copyright Act (DMCA) apply? What about the terms of service by the internet service providers?
These are all complicated issues and a developing area of the law. For much of this, there is no answer just yet.
The American Bar Association Solo and Small Firm Division appointed me as an advisor to the Uniform Law Commission committee which is drafting the model law on Fiduciary Access to Digital Assets. The Uniform Law, once it is finished, is intended for the individual states to adopt on their own to deal with these issues.
I am attending my second meeting. The issues are more difficult than I thought. We have representatives from Google, Facebook, Microsoft, and other online companies in the room, and the needs of the trusts and estates attorneys is in direct conflict with what they say are the federal privacy standards imposed upon them.
This is too complicated to write about in a short blog post, but I’ll try to keep updating on individual issues as things develop.