On October 1, 2016, Maryland’s Fiduciary Access to Digital Assets Act will come into effect, thereby giving a fiduciary (i.e., personal representative, guardian, agent or trustee) the ability to request access to a person’s digital assets in certain circumstances. Digital Assets is defined as “an electronic record in which an individual has a right or interest.” The Act allows an individual to direct whether their digital content is disclosed, to whom and to what extent. This authority can be granted through an online tool provided by the custodian (e.g., Google has Inactive Account Manager or Facebook has Legacy Contact) or through an individual’s will, trust or power of attorney. Access may still be subject to the terms of a service agreement and gives the custodian of such information (e.g., Google) some discretion as to the breadth of the disclosure and the ability to charge an administrative fee. If a request is made, the Act requires that a custodian comply no later than 60 days from the receipt of the request, including receipt of all the ancillary documentation associated with the request as detailed under the statute.
Other States, such as Virginia, are sure to follow with similar laws, so what should you do?
You may want to opt out of using online tools such as Google’s Inactive Account Manager or Facebook’s Legacy Contact so that you can better control your wishes through your estate planning documents (will, trust or power of attorney).
You should also review and update your estate planning documents (will, Trust, or power of attorney) to ensure that access to digital assets has been addressed in accordance with your wishes.
It would also be wise to create and store in a secure location a list of all your digital assets, including your credentials, so that your nominated fiduciaries know what assets to access during any period where you are incapacitated and upon your death.
Posted by Sheri R. Abrams, Estate Planning Attorney, Fairfax Virginia, www.sheriabrams.com