So much of our business and personal lives is transacted online.  Our clients have serious concerns around how digital assets and accounts are managed after death.  You may be surprised that online service providers were not required to follow your directives after death or during your incapacity.  Who is in control: you or the online service provider?

On March 3, 2016, Governor Kate Brown signed Oregon Senate Bill 1554 into law: the Revised Uniform Fiduciary Access to Digital Accounts Act.  On January 1, 2017, the law became effective.  Oregon was the first state to adopt the new statute giving control over digital assets to a specifically authorized representative, called a fiduciary.  Fiduciaries are the people you appoint to manage your affairs during your incapacity or after your death.

What are digital assets?

Digital assets include anything of value that you store electronically. Some common digital assets include:

• Bitcoins
• Websites
• Text messages
• Social media accounts
• Online bank and investment accounts
• Photos, Music or Documents stored on a computer, smartphone or online (iCloud, Google Drive, Dropbox)

Think of all the transactions you now do online.  Think of all the websites you use.  Each has a username and password.

The new law is designed to ensure that account holders can retain control of their digital property and account information and plan for its ultimate disposition after the owner’s death or during incapacity.  The statute avoids circumstances where online service providers delete accounts of deceased account holders without authorization or refuse access and information to permitted fiduciaries.

Under the new law, your fiduciaries can access and manage certain digital property such as computers files stored online.

If you, the original account holder, expressly give permission in a will, trust, or power of attorney, your fiduciary can access digital communications such as email, text messages, and social media accounts.

You can also create legally enforceable instructions for the disposition of your digital assets after death by using tools provided by online service providers.

If you have not given specific authority to your appointed fiduciaries, then the service provider’s terms of use will control your digital assets.

How can I protect my digital assets after my death?

Start by making sure your existing will, trust, and durable power of attorney contain specific authority over digital assets. The new law has only limited use unless these documents include these provisions. Your documents may not be up to date unless your estate plan was prepared recently by an attorney experienced in this area. Digital assets were not even discussed by many law firms a few years ago.

Then organize your affairs so these accounts can be found. You may consider using a password manager application or program to keep and store this information. By keeping your accounts and associated usernames and passwords in a central and secure location, you will significantly help your surviving spouse, significant other, or representative in administering your digital affairs. Many password manager programs have a feature that allows emergency access by one or more designated people. Some examples of these service providers include: directivecommunications.com; securesafe.com; lastpass.com; and dashlane.com. I am not endorsing any particular service.

Authority over digital assets and the associated tools to manage those asset are a quickly evolving area. You should expect more service providers and software applications to be introduced as the Revised Uniform Fiduciary Access to Digital Accounts Act spreads across the fifty states.