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Specific provisions should be included in your durable power of attorney, last will and testament, and trust, if applicable, to allow for control over your digital assets.
The New York State Fiduciary Access to Digital Assets Act was signed into law in 2016. This law provides fiduciaries with the right to access digital assets. The term “digital assets” can refer to an email account, online photo storage system, access to online bank accounts, and other similar platforms. The purpose of the law was to clarify what access an agent under power of attorney, court-appointed guardian, executor of an estate, or trustee of a trust will have over these types of assets. With this specific power, we are talking about access to these digital platforms, not control of the underlying asset. What can be done with the underlying asset will depend upon the other powers granted under the document.
The document appointing the fiduciary must specifically list that there is a power over digital assets. In a power of attorney, this can be added to the “Modifications” section. Similarly, in a last will and testament or trust agreement, this will be a separate power that is given to the executor or trustee within the document; it is not a default! Without such a reference, the institution holding the digital asset could refuse to accept the document, therefore refusing access to the fiduciary. The power itself will often include the ability to access, modify, delete, control and transfer the digital assets, as well as the power to control and change associated passwords.
What Happens to Your Digital Accounts if You Don’t Update Your Estate Planning Documents?
The law permits the owner of digital asset to direct who can access the account and to what extent. Absent a designation of authority to access your digital assets, the agent is bound by a Terms of Service Agreement, which most people do not read as they are clicking through the necessary steps upon creation of the email or social media account. Without this access, many service agreements provide that at the death or incapacity of the owner of a digital asset, their account was frozen or deleted without access by loved ones, as the service agreements generally prohibit access by third parties. Putting this power into your estate planning documents will override the service agreement.
Now is the time to review your estate planning documents to see if you have accounted for digital assets and to update them if you find them to be void of this information.
Author: Britt Burner, Esq.
