The goal of estate planning attorneys has always been to provide
their clients with control – control over their assets during
their lives and a say in how those assets are distributed at their
deaths, and as property itself (and financial account access)
transitions into digital form, the law which attorneys use to
provide this control will need to catch up.
As we wrote about in November[1], both the law and technology
companies are in the midst of trying to figure out how state laws
governing inheritance and access to assets should be changed, if at
all, to govern this new electronic world, particularly when people
die and wish to allow their executors, trustees, and other
fiduciaries to act with regard to "digital"
assets.
Last August, Delaware became the first state in the union to pass a
version of the Uniform Fiduciary Access to Digital Assets Act
("UFADAA"), designed to provide the guidance and
authority necessary for executors, administrators, guardians,
conservators, attorneys-in-fact, and trustees to act with regard to
digital assets just as they already do with regards to tangible
property.
As we noted previously, UFADAA brings up questions as well as
answers. It raises privacy concerns – does an
attorney-in-fact have the right to read all of your email?
Some information service providers have expressed concerns about
revealing to fiduciaries information that a decedent intended to
keep private. Moreover, they note that release of information
to a fiduciary can sometimes implicate privacy issues of persons
who are still living. One example would be email between a
patient and his or her psychiatrist or minister.
In the wake of the Delaware enactment, other states appear poised
to consider similar revisions to their own laws. On January
6, State Senator Whitney Westerfield (R-Ky.-3) introduced a
Kentucky bill[2] closely modeled on the uniform act. Though
there is no indication as of yet whether the bill will pass, and
there appears to be some opposition to it, similar legislation has
been proposed in other states.
The law is indeed attempting to catch up to the times. But
regardless of whether our law changes this year, there are steps
that Kentuckians can take now to ensure their wishes related to
digital property can be respected in the future. For more
information, contact one of the attorneys in Stoll Keenon
Ogden's Trusts, Estates & Family Law practice.
[1] What Happens to Your Digital Life When You Die?
[2] AN ACT relating to the Uniform Fiduciary Access to Digital Assets Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
