These days it's hard to go even one day without having some interaction with the digital world. What happens to your on-line assets when you go off-line? Whether you are incapacitated or pass away, your digital assets are an important part of the information your family or agent will need.
First, it may be helpful to know what your digital assets include. Digital assets are defined as an electronic asset in which an individual has a right or interest, these may include: e-mails, online bank or investment accounts, credit card/bill payments, airline miles, websites, online storage accounts and the list goes on and on. Effective July 1, 2016, the following amendments to the Uniform Fiduciary Access to Digital Assets Act will take effect.
The amendments to the Digital Assets Act affect certain powers fiduciaries have. A “fiduciary” is as an attorney in fact, guardian, PR or trustee. If this is a role you are performing for someone the following changes increase your access to that person's digital assets:
IC 32-39-2-4 and IC 32-39-2-5 applies to the right of a PR who is acting on behalf of the estate of a deceased person to access the content of an electronic communication, catalogue of electronic communications or any other digital asset of the deceased person.
IC 29-1-8-1 regarding small estate affidavits is amended to allow a distributee to have the same rights as a PR under the Code stated above to access a digital asset of the decedent.
IC 32-39-2-8, IC 32-39-2-9 and IC 32-39-2-10 applies to the right of a trustee acting under a trust to access the content of an electronic communication, catalogue of electronic communications or any other digital asset.
IC 32-39-2-6 applies to the right of an attorney in fact acting under a trust to access the content of an electronic communication, catalogue of electronic communications or any other digital asset.
Below is an entirely new power given to a Power of Attorney under IC 30-5-5-14.5 that confers general authority with respect to electronic records, reports and statements to authorize the attorney in fact to:
(1) Gain access to any computer, storage device, network, communication device or other computing machinery that the principal owns, leases or otherwise has license to access.
(2) Gain access to any under account the principal maintains with an online service provider
(3) access, retrieve, copy or store the content of an electronic communication, catalogue of electronic communications or any other digital asset;
(4) Perform any act in connection with the preparation, execution, filing, storage or other use of electronic records, reports or statements concerning the principal's affairs.
These amendments make it easier for your fiduciary to have access to your digital records. However, imagine how difficult it would be for someone else to locate this important information in the event of your incapacity or death. A great way to assist your fiduciary is to create a digital asset inventory. The ever growing popularity of digital assets makes it especially important to plan for your digital assets like you would your physical assets. A digital asset inventory can better prepare your fiduciary to handle your digital assets.
Your list should include the location of the asset and the username and password needed to access the information. It should also include directions on what should be done with each asset. You then want to provide directions on how to access this list in the event of your incapacity or death. Because a digital assets inventory includes very sensitive information, it's important to store the information in a secure place. As you open new accounts or change usernames and passwords it's vital to update the information.
The attorneys at Grunden Law Office follow new developments in the law such as this Digital Access Act and work with our clients to notify them of changes that may have an impact on their disability or estate plan. Please contact our office