Digital Assets Revisited

Take-Away:  You will recall that I recently wrote about the need for a fiduciary to be empowered to access the content of an individual’s digital assets. I mentioned this in a couple of presentations last week, after which I was asked by two attorneys if I had seen any sample language that would comply with the Michigan Revised Fiduciary Access to Digital Assets Act. I ran across a sample provision in my ‘weekend’ reading.

Sample: The sample is for a trust but it could easily be adapted to a will’s powers conferred on a personal representative, or added to a durable power of attorney empowering financial management decisions by an agent.

The trustee shall be authorized to access, handle, distribute and dispose of digital devices, digital assets and digital accounts, collectively referred to as my Digital Property, which may comprise any portion of this trust estate. As used in this Trust, ‘digital devices’ shall include, but not be limited to computers, tablets, storage devices and cellular phones. As used in this Trust ‘digital assets’ shall include digital content, and not only catalogues of content, including without limitation, electronic mail, calendar entries and contacts, electronically stored documents, images, video or other files, regardless of ownership of the physical device upon which the digital asset is stored. As used in this Trust ‘digital accounts’ shall include but not be limited to electronic mail accounts, websites, blogs, social network and media accounts (e.g. Facebook, Twitter, LinkedIn, Instagram, Dropbox, Evernote, and the like) financial management accounts, online store accounts (e.g. Amazon, PayPal, Google Wallet, iTunes and the like) and other online accounts, and all associated logins, passwords, security codes and security questions.’

As a refresher, the Uniform Act authorizes as its default rule a fiduciary to have access to a catalogue of an individual’s electronic communications but not the content of those electronic communications. Hence the need to include in the governing instrument the express authority to access the content of the individual’s electronic communications.