February 2015

3 Steps to Protect Your Digital Assets

You may have heard cases where a deceased person's digital assets are in the news. They can be emotional. In one, a social networking site did not have to release account content to a woman's family who wanted help determining whether her death was a suicide. In another, a blogger's account full of photos was closed and unavailable to the family. With more and more financial information housed and controlled online, members of your family may also be put to unnecessary expense to maintain their lifestyle. What should you do to protect your interest in these assets?

By way of brief background, there are 2 relevant federal laws: The Computer Fraud and Abuse Act and the Stored Communications Act. Both are generally designed to protect against unauthorized access to computers and files and can impede your family accessing your accounts on your behalf. Social networks and others often cite these as a reason to not allow any access to the accounts after a death. A handful of states (not yet including North Carolina) have passed laws attempting to give your representatives, such as your Executor, at least limited access to your accounts. More of these state laws will be coming, including a Fiduciary Access to Digital Assets Act (FADAA), which will be a comprehensive and uniform set of state laws in those states that adopt it.

In the meantime, we are recommending to our clients 3 steps to protect their digital assets:

1. Identify and create an inventory of your digital assets. For an example, see our Form here.

2. Store the inventory in a secure and private location. For a hard copy format, you may want to store it in a safe deposit box or with an attorney. For an inventory in an electronic file or multiple electronic files, consider creating a master password for the storage device.

3. Add provisions to your Will and Trust, and possibly Powers of Attorney, relating to these digital assets.