|First US State Grants Executors Full Powers over Digital Assets|
Delaware has become the first US state to enact a law treating a deceased resident’s digital assets – such as email, social media or mobile phone accounts – in the same way as the estate’s paper records and physical assets.
The Fiduciary Access to Digital Assets and Digital Accounts Act (HB 345) gives heirs and executors authority to assume legal control of a digital account or electronic device, unless the deceased has specified otherwise in a will. It also applies to persons acting under a power of attorney for an incapacitated person, and to settlors and beneficiaries of trusts. Previously such persons were at the mercy of the digital service providers’ terms of service, which typically state that no other person can access the account without the company's permission. The Delaware law overrides any such clause.
It states: ‘A fiduciary with authority over digital assets or digital accounts of an account holder under this chapter shall have the same access as the account holder, and is deemed to have the lawful consent of the account holder and be an authorized user under all applicable state and federal law and regulations and any end user license agreement.’
The legislation is based on a model bill drawn up by the influential Uniform Law Commission, a body that lobbies state governments to adopt consistent laws where possible.
It applies only to deceased or incapacitated Delaware residents, not those of any other jurisdiction. The only effect on companies incorporated in the state – which include Google, Facebook and Twitter – is that they have to respond to requests from the heirs of a Delaware resident. It is not clear how it can be enforced on service providers outside Delaware.
Moreover, not everyone supports the new law. Some lawyers have pointed out that giving a person’s executors full access to their e-mail correspondence could amount to a breach of confidentiality of the person’s correspondents, who may include doctors or lawyers.
The opinions expressed do not constitute investment advice and specialist advice should be sought about your specific circumstances.
Published on our website on Aug.22, 2014