Cover Your Digital Assets

A digital asset consent for release is now a standard part of an estate planning package with Clayton and Clayton, PLLC, but what is it?


Recently, North Carolina adopted the revised Uniform Fiduciary Access to Digital Assets Act, or UFADAA. While still new, adopting this statute has important implications with regard to estate planning.


Have you stopped to consider what happens to your digital assets when you die? Do you have photos stored on the cloud? What about digital music, videos, or books? What about access to email accounts, bank accounts, online medical records, web hosting accounts, social networking, and social media accounts?


The Internet is changing on a daily basis, and with those changes, it becomes a more and more ever-present factor in our lives. We took a vacation recently to a remote area with no Internet access, and we quickly realized how much we depend on our digital assets such as photos, videos, email, and file sharing services once we couldn’t access them constantly – and let’s not even get started on the difficult process of explaining to our son why we couldn’t stream his favorite Daniel Tiger videos!


Typically, “custodians” control our digital assets. These custodians are typically the servers, hosts, and/or companies that manage the cloud – which means that access is usually terminated at the death of the user. Prior to the enactment of UFADAA, attorneys often suggested leaving a list of passwords for loved ones to access digital accounts at death or incompetency, but there is a possibility that this is in violation of the user agreements that we agree to when we create such accounts. Best practice now suggests that the best way to do this is to create a Digital Assets Consent for Release in conjunction with a list of all electronic assets and accounts so that your appointed fiduciary knows where to look, what accounts you have, and how to access them.


This is why we are excited that NC has adopted the uniform rules.  While our digital assets will still be subject to copyright laws and federal privacy laws, we can now appoint legal access to our accounts through a Digital Assets Consent for Release. What this does is allow the fiduciary, typically the executor of the estate, to legally step into the shoes of the decedent to access these documents. Not only does this make the probate process run smoothly, but it also – and more importantly to loved ones – allows access to these assets.


It’s also important to check with the individual custodians of your accounts to see whether they offer their own estate planning options that you can manage and evaluate now. One example is Facebook’s creation of a Legacy Contact – see more here: https://newsroom.fb.com/news/2015/02/adding-a-legacy-contact/. In circumstances such as those, the UFADAA will defer to the account holder’s choices – although it typically will override “click-through terms-of-service agreements” that conflict with otherwise express instructions made by the account holder.


While a Digital Assets Consent for Release is an important step, it’s best to use it in conjunction with appropriate language in your Last Will and Testament. This way, your appointed fiduciaries should be able to have access to such assets not only during a period of incompetency when you cannot access such records on your own, but also after death.


Curious how your digital assets will be maintained after your death? Don’t hesitate to reach out to us to talk about this some more.


And don’t forget, if you created estate planning documents with Clayton and Clayton recently, but wish to add a Digital Assets Consent for Release to your estate planning documents, we will make one for you free of charge.