Do you store pictures online? Have a Facebook account? Keep documents in the Cloud? Or use online accounts to maintain certain aspects of your life? If so, you should be aware that earlier this month Tennessee Governor Bill Haslam signed into law a bill that could impact what happens to those digital assets after your death.
The Uniform Fiduciary Access to Digital Assets Act (UFADAA) is designed to make sure you control what happens to your digital property after you pass away. The law addresses concerns that online accounts containing assets of personal significance or even monetary value may be simply deleted upon a person’s death, or that loved ones will be refused access to digital property.
Oregon’s Karen Williams faced this dilemma while grieving the loss of her 22-year-old son, Loren in 2007. She revisted memories of his life by accessing his Facebook account, where he kept pictures and stories. When Facebook learned of his death, however, the company changed the password, denying her access, and sparking a lawsuit over control of his property. Ultimately, she won a court order, but as Associated Press reported, “she never received the full access she sought.” The account was subsequently deleted.
Tennessee is currently one of only 4 states that have enacted UFADAA, which answers this concern and many others related to digital assets. In summary, the law (you can read Tennessee’s version here) establishes the following succession in determining the disposition of digital assets after a person’s death:
First, if the deceased person expressed their wishes through an online tool offered by the service provider, UFADAA gives priority to that expression. Facebook, for example, now offers a legacy contact feature, allowing you to appoint someone to manage your account according to your instructions after your death.
Second, in the absence of such a tool, if the deceased person expressed their wishes for digital assets in a Last Will and Testament, or Power of Attorney, UFADAA says that expression is to be followed.
Third, if no specific service provider tool was used, and no estate planning document sets out the person’s wishes, the terms of service agreement will control, if it addresses the disposition of the property following the user’s death.
If none of that is available – if the user has not expressed their intention, and the terms of service are silent on the question, UFADAA authorizes fiduciaries (including executors administering a deceased person’s estate, agents acting under a power of attorney, and trustees) to access digital accounts and files maintained online for the purpose of carrying out fiduciary duties. Importantly, that access does not include the content of electronic communication like e-mails and text messages, unless the user provides consent.
Companies receiving appropriate requests for account access, control, or a copy of a digital asset stored online, may face a court order if they fail to comply within 60 days of the request.
The number one practical step you can take is to plan now for what happens to your online life after you pass away. Make specific provisions for how you would like your digital assets to be handled following your death through online tools offered by your service provider and in your Will and Power of Attorney documents.
Please contact us today online or by calling 800.705.2121 to discuss your legal options.