If you become unable to handle your affairs or pass away, do you know who will be permitted to manage your online accounts? Should that person have access to your electronic communications, such as text messages, email and social media conversations? These have become increasingly important issues as more and more people are using online services for banking, financial transactions, data storage, and shopping, just to name a few.
In response to this popular area of legal concern, on September 13, 2017, Governor Christie signed Assembly Bill A-3433, also known as the Uniform Fiduciary Access to Digital Assets Act (the “Act”), into New Jersey law. The Act is effective ninety days following its enactment, and applies to fiduciaries acting on behalf of New Jersey residents, and representatives of decedents’ estates who were residing in New Jersey at the time of their death.
In general, the Act allows fiduciaries to manage a user’s digital assets, but restricts a fiduciary’s access to electronic communications, unless the user has expressly consented to the disclosure of such communications in a will, trust or power of attorney.
The Act was originally proposed by the Uniform Law Commission (“ULC”) (also known as the National Conference of Commissioners on Uniform State Laws) in 2014, and was revised in 2015. The ULC studies and evaluates areas of law in which states would benefit from uniformity, and ultimately proposes suggested uniform laws. The proposals do not become law of any state until adopted by its legislature.
The primary purposes of the Act are: (1) to give fiduciaries legal authority to manage digital assets and electronic communications in the same manner as they manage tangible and other intangible assets, such as financial accounts, and (2) to give custodians of digital assets and electronic communications legal authority to deal with the fiduciaries of their users, while respecting the user’s reasonable expectation of privacy for personal communications.
Summary of the Act
The Act addresses the authority of four different types of fiduciaries when managing a user’s digital assets. These four fiduciaries are (1) executors and administrators of decedents’ estates, (2) agents under powers of attorney, (3) guardians and (4) trustees.
The Act defines the term “digital asset” as generally meaning an electronic record in which an individual has a right or interest. Examples of digital assets include, but are not limited to, digital photographs and music, email and social media accounts, computer files, file sharing and online financial accounts, tax preparation service accounts, web domains and virtual currencies.
Custodians of digital assets (i.e. Google, Facebook and Venmo), typically have a “terms-of-service” agreement in place to govern the relationship between the user and the custodian. Some of these agreements contain policies on what would happen when a user dies or becomes incapacitated. Even when the terms-of-service agreement contains such policies, it is not often that the user understands or has read the fine print. Even when a user has read and understands these policies, it has not always been clear (at least prior to the enactment of the Act) how courts might resolve conflicts between such policies and a user’s contrary direction in his or her will, trust or power of attorney. The Act helps clarify many of these issues.
The Act grants the fiduciary access to a catalogue of electronic communications sent and received by the user, and digital assets (other than the content of electronic communications) so long as the user has not prohibited this disclosure. The “catalogue of electronic communications” provides the fiduciary with information such as the email addresses that the user corresponded with, the times and dates of the communications, and the names associated with the respective email addresses. However, the catalogue does not provide information concerning the underlying communications, such as the content of email, text and social media messages.
In order for the fiduciary to obtain the “content of electronic communications,” the user must have either (1) authorized fiduciary access through the use of an online tool provided by the custodian as a means for the user to make this decision electronically, or (2) expressly granted fiduciary access to such content in his or her governing instrument, such as a will, trust or power of attorney.
The Act also provides a written procedure for fiduciaries to request that a custodian terminate a user’s account, and specifies certain documents and information that must be provided in order for the account to be terminated.
The Act makes it clear that the fiduciary remains charged with significant duties when dealing with a user’s digital assets, including the duties of care, loyalty and confidentiality, and therefore must act in the user’s best interest. In fact, the Act provides that the fiduciary may not impersonate the user under any circumstance.
Review Estate Planning Documents
New Jersey’s enactment of the Act requires a review of existing estate planning documents. This is particularly true in light of the fact that, under the Act, if a user does not make an election using an online tool provided by the custodian, fiduciary access to the content of electronic communications must be expressly authorized in the user’s will, trust or power of attorney in order for the fiduciary to obtain such content, which may turn out to be valuable for the prompt and efficient administration of the user’s estate. Additionally, significant changes have been made to federal and state tax laws over recent years. As a result of these changes, it is important to have your estate planning documents reviewed by a qualified trusts and estates attorney to ensure that your documents meet with your current wishes and that outdated provisions do not lead to unintended results.
Disclaimer: This summary of legal issues is published for informational purposes only. It does not dispense legal advice or create an attorney-client relationship with those who read it. Readers should obtain professional legal advice before taking any legal action.