Control, Access, and the Passing of Your Digital-Self upon Death

When it comes to estate planning and the discussion of passing a person’s assets to someone else upon his or her death, most people talk about real estate, cash, and bank accounts. They don’t think about their digital assets: audiobooks, music, photos, or movies. Or if they do, they don’t think about apps on their phones or computers, e-mail accounts, online gaming items, and other digital assets. However, with the ever-increasing move to digital platforms, digital assets are substantially increasing. In addition, these assets are no longer worthless but can have real economic and sentimental value.

When someone passes away, and there was no thought put into the transfer of his or her digital assets prior to his or her death, a term-of-service agreement for the custodian of a digital asset could govern where the asset goes or who has access. The term-of service agreement could send the property to someone other than those individuals named in the decedent’s estate planning documents. In addition, the term-of service-agreement could create a challenge for the Personal Representative or other fiduciary when trying to access e-mail accounts or to close down accounts, apps, or other digital assets.

To help alleviate some of the problems that can arise when someone is incapacitated or passes away, and a fiduciary is now standing in the shoes of the decedent or incapacitated individual, South Dakota enacted the Uniform Fiduciary Access to Digital Assets Act. This Act gives fiduciaries (Trustees, Personal Representatives, Powers of Attorney, etc.) the ability to manage and control the digital assets and electronic communications of a decedent or incapacitated individual, so long as the fiduciary is designated with the custodian or in a person’s will, trust, power of attorney or other records. It also gives custodians of digital assets the ability to talk with the fiduciaries of their users.

Therefore, it is not only important to talk with your estate planning attorney about your real estate, cash, and bank accounts when you are discussing estate planning; you should also be discussing your digital assets. If you don’t, you run the risk of your digital assets going someplace other than where you intended them to go.