Of death and digital assets: where do you hide your treasures?

When most of us are asked to identify our “assets,” we will readily recall those items of personal or real property that can be seen or touched; that is, our house, vehicles, jewelry, etc. With a little more thought, we probably remember our bank accounts, certificates of deposit, stock portfolios, retirement plans, and 401(k) accounts as part of our assets. However, relatively few people are adept at identifying their “digital assets” as property of value. “Digital assets” refer to email and Internet accounts, websites, domain names, and photos or videos stored on personal computers or “in the cloud.” However, who knows, the next great business plan or blueprint may currently reside in complete anonymity somewhere within your electronic files.

Consider for a moment that your digital assets may include property you own that has substantial financial or sentimental value. Also consider that this valuable property may remain undiscovered and forever undiscoverable if you die unexpectedly. If that happened, would your loved ones know what treasures lay buried in your laptop or shrouded in the cloud? If they do, would they be able to access them? Now, perhaps, those hidden treasures can be found and perhaps used by those to whom you leave such generosity.

If, like me, you enjoyed children’s stories about pirates searching for buried treasure, let me suggest that we now have a kind of map to discover buried treasure in cyberspace. I am referring to the Uniform Fiduciary Access to Digital Assets Revised Act which has been adopted by twenty (20) states, including Oregon and Washington. The Act will take effect here in Oregon on January 1, 2017. Thereafter, the personal representative you name in your will will be able to access your digital accounts after your death to the same extent that they could if you were still around. live.

The drafters of the law no doubt understood that some people might be less enthusiastic about allowing their loved ones access to their email communications post-mortem. The Act allows you to leave specific instructions in your will that prohibit such disclosure. Therefore, while the Act is intended to facilitate a fiduciary’s ability to discover and manage digital assets, it also respects the account owner’s reasonable expectations of privacy.

For a more detailed explanation of the Law, review the preliminary note prepared by the commission that drafted the model law. We will be interested to watch and see if this new Law helps unlock any hidden treasures.

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