update on access to digital assets: are we there yet?
TRANSCRIPT
UPDATE ON ACCESS TO DIGITAL ASSETS:
ARE WE THERE YET?
PRESENTED BY:
HOWARD COLLENSGALLOWAY AND COLLENS, PLLC
MICHAEL LICHTERMANBOLHOUSE, BAAR & HOFSTEE, P.C.
Categories of Digital Assets
Personal Stored on computers, smart phones, or other devices, or are
uploaded to a Web site or digital service Photographs, videos, emails, and music playlist
Social Media May involve photos, videos and other electronic files stored on
these accounts Financial
Online banking, online bill-paying activities Online accounts with no connection to a brick-and-mortar
establishment (Amazon, eBay, PayPal and E*TRADE, BitCoin) Business
Varies by types of business and extent of its computer or Internet associated activities, which may include blogs, domain names, credit card and financial data
Value of Digital Assets
“Digital Assets” may have sentimental and monetary value
2013 survey conducted by McAfee - average value on digital assets of $35,000
Both personal and business assets – actual monetary value (i.e. domain names, blogs, etc.)
Access to Digital Assets - Provide Instructions:
If you want a site to continue, for example if you have a website or blog, you need to leave instructions for keeping it up or having someone take it over and continue it.
If a site is currently producing or could produce revenue (e-books, photography, videos, blogs), make sure your successor knows this.
If there are things on your computer or hard drive that you want to pass on (scanned family photos, ancestry research, a book you have been writing), put them in a “Do Not Delete” folder and include it on your inventory list.
Excerpt from: Estate Planning for Digital Assets and Social Media
Terms of Service
Facebook’s Statement of Rights and Responsibilities
Yahoo Terms of Service LinkedIn User Agreement Google Terms of Service Ello
Memorialize the account “We will memorialize the Facebook account of a deceased person when we receive a valid request. We try to prevent references to memorialized accounts from appearing on Facebook in ways that may be upsetting to the person's friends and family, and we also take measures to protect the privacy of the deceased person by securing the account.Please keep in mind that we cannot provide login information for a memorialized account. It is always a violation of our policies to log into another person's account.”
Memorial accounts can never be logged into again
From: Facebook
The State of the Law Is In Flux
In matters of incapacity and post death, the Probate laws (and in certain cases in Michigan, the Mental Health Code) will control who can access digital assets
Digital companies have created terms of service agreement to begin to address the management of digital property after incapacity and death
Only eight states have passed legislation regarding access to digital assets (Delaware, Oklahoma, Idaho, Rhode Island, Indiana, Virginia, Nevada and Connecticut, who was the first in 2005)
Federal Statues and Michigan Statues
Stored Communications Act, 18 USC 2701, (also known as the Electronic Communications Privacy Act (ECPA))
Computer Fraud and Abuse Act, 18 USC 1030
Michigan law, in MCL 750.540
Michigan and FADA
HB 4072 is the latest effort in Michigan Michigan FADA should improve on UFADAA by adopting broader definition of Fiduciary to include:
Guardian of the Person/Guardian of the Estate Special Fiduciaries
In 2011, the Uniform Law Commission established the Fiduciary Access to Digital Assets Committee to draft a free-standing act that will vest fiduciaries with the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets
The Committee has met since that time and in July 2014 the ULC adopted a final version of a Uniform Fiduciary Access to Digital Assets Act (UFADAA)
The UFADAA: Gives Account Holder control over
whether digital assets should be preserved, distributed or destroyed
Authorizes access to digital assets that would not violate the Federal Stored Communications Act, 18 USC 2701 and Computer Fraud and Abuse Act, 18 USC 1030
The UFADAA: If widely adopted, provides
consistency throughout the country Currently, there is a hodge-podge
approach Authorizes access by:
Agent under Power of Attorney Conservator Personal Representative Trustee
The UFADAA:
Requires that fiduciaries provide proof of authority in the form of a certified document
Gives Custodians of digital assets immunity for relying on a fiduciary’s apparent authority
Addresses Impairment of Contract and Public Policy
Under UFADAA: Personal Representative/Trustee are
“opt-out” May Access Digital Assets Unless
Otherwise Provided in Writing Conservator is “opt-in”
May Access Digital Assets Only With Authority from Court
Agent under Power of Attorney is mixed Access to Catalogue of Electronic
Communications is “opt-out”, Content is “opt-in”
Privacy Expectation Afterlife and Choices Act
The Privacy Expectation Afterlife and Choices Act (PEAC Act) Proposed by NetChoice Addresses post-death access only Requires probate in every instance
A Robust, Effective Approach for Michigan
Drafted by Updating Michigan Law Committee of the Probate Council
Final version of UFADAA as its basis A practical, Michigan specific law
developed by members of the Michigan Bar.
Endorsed by Probate and Estate Planning Section, the Elder Law and Disability Rights Section and the Michigan Probate Judges Association
Incorporating Digital Estate Planning
into Your Practice To help the process, a questionnaire for the
client to list all digital assets and the value of those assets
Discuss if any of the assets have financial value
Keep record of all passwords and profiles There are websites specifically designed to
release account information after death to designated beneficiaries (PasswordBox.com or AssetLock.net)
Suggest clients protect significant data with strong encryption
Inventory Checklist Make sure to include everything from the
computer, other devices, and the “virtual world” (i.e. cloud, internet)
All email accounts All meaningful social websites Financial and commerce accounts Make a simple spreadsheet with passwords to
access assetsDigital Assets Inventory
Asset Access WishesName Contents Locatio
nUsername
Password Instructions
Recipient
Who is in Charge?
After an inventory of digital assets is created, decide who to give the access to in the event of death or disability.
Make sure to indicate whether the digital executor should archive content, share content with others, or delete content (and/or secure privacy of some content which may be harmful).
Make sure to include any special instructions (Think sensitive and/or embarrassing content).
Access to Digital Assets
Create a document and note if the property is personal or has monetary value
Examples of note
Excerpt from: The Trust Advisor
Where Should The Client Note His or Her Intent?
Powers of Attorney Last Will and Testament Revocable Living Trust General Assignment
Howard H. CollensGalloway and Collens, PLLC
26075 Woodward Ave, Suite 200Huntington Woods, Michigan 48070
248.545.2500GallowayCollens.com
[email protected]: @howardcollens
Michael LichtermanBolhouse, Baar & Hofstee, P.C.Grandville State Bank Building
3996 Chicago Drive SWGrandville, Michigan 49418
616.531.7711BolhouseLaw.com