What happens to my E-mail, Facebook, Twitter, Instagram, or other Digital Assets when I die?
The answer to this question has been greatly clarified due to the North Carolina General Assembly’s passage of the Revised Uniform Fiduciary Access to Digital Assets Act. See N.C. Gen Stat Chapter 37F. Prior to this Act, attorneys could merely attempt to address these issues in an individual’s Powers of Attorney and Last Will and Testament but had no statutory authority on the matter. The new law specifically allows an individual to designate that his/her fiduciaries including attorneys-in-fact, personal representatives, and trustees can access their digital assets. Furthermore, in the event an individual is declared incompetent, his/her guardian is now allowed access to digital assets.
However, there are limitations to the Act’s reach. Digital assets in general are governed by the Terms-of-service agreement that a user enters when clicking the “I agree” button. If the Agreement a user enters makes provisions regarding access to the assets that are different than what is provided for in the Act then the Agreement will control. Also, some digital assets provide online tools allowing an individual to dictate who may have access to their digital assets. If the individual provides a contrary direction in an online tool then this direction will override a designation provided in a Power of Attorney or Last Will and Testament.
Despite these limitations, the Revised Uniform Fiduciary Access to Digital Assets Act provides much needed statutory clarity regarding access to digital assets by fiduciaries. It is important that an individual incorporate these provisions into their estate planning documents. Furthermore, individuals should be more cognizant of access provisions in Terms-of-service agreements and make sure that any direction they may provide in an online tool is consistent with his/her wishes.
If you have any questions regarding the Revised Uniform Fiduciary Access to Digital Assets Act or any other issue, please contact Andrew G. Foster at Harvell and Collins, P.A.