Though it may not be among your most pressing concerns, the reality is that access to electronic accounts is a matter of growing importance in the estate planning world.
The Wall Street Journal recently published an article about a new law in Delaware that has changed the way that others can access electronic data for those who are either deceased or incapacitated. The new measure is welcome to some and fiercely opposed by others.
To find out more, keep reading.
What’s the issue?
The problem revolves around what to do with a person’s electronic accounts and other digital information after they have either passed away or are otherwise unable to access it themselves.
Increasingly, executors or those with powers of attorney, have found themselves stymied by tech companies who refuse to grant access to another person’s online account. Whether it’s email, social media or online storage websites, most technology companies worry about violating federal and state privacy laws and, as such, only grant access after executors obtain court orders.
The problem is that going through the hassle of getting a court order can take months or even years and cost sometimes significant sums of money. This can make it impossible to access treasured family photos, respond to important emails or get ahold of crucial financial information.
What’s the solution?
The Delaware legislature passed a bill last summer known as the Fiduciary Access to Digital Assets and Digital Accounts Act, which says executors, agents and others acting in a fiduciary capacity can now access online accounts without a court order. The only exception written into the Delaware legislation is if the deceased left specific instructions requesting that access be denied to certain accounts.
The point of the new legislation is to grant the same access to executors that would be given for records kept in cabinets or storage facilities. The executor is required to follow the instructions of the owner, even if that means not accessing an account. If no instructions were left, the executor is allowed to do as he or she wishes.
What’s the problem?
Though many in the estate-planning world have welcomed the new law as an effort to keep pace with changing technological times, others have condemned the measure as a breach of consumer privacy.
The fact is, there are many online accounts a person many not want his or her executor to ever have access to. Emails can be incredibly sensitive and revelations contained in these accounts could upset family members already struggling with the loss of a loved one. Rather than throw open accounts that were designed to stay private, critics say accounts should remain sealed unless a deceased person has included passwords and access information among his or her estate planning documents.
Experts say that though the new law is limited to Delaware, it could impact those living across the country. The reason is that Delaware’s trust and taxation laws make it a prime destination for locating trust funds, especially among the wealthy. The new law grants trustees this same authority over any digital items located inside a Delaware trust.
What happens next?
The Journal says that Delaware has blazed a trail that many other states may soon follow. Right now, 13 states are considering similar measures to grant digital authority to executors. Experts say that anyone who is interested in excluding access to certain accounts, for whatever reason, should go ahead and draft a document outlining those wishes. Even if your state does not currently allow for such access, it could happen without warning and before you have a chance to make changes.
An experienced Minnesota estate planning lawyer can help walk you through the complicated process of establishing a workable estate plan. For more information on estate planning in Minnesota, along with a variety of other topics, contact Joseph M. Flanders of Flanders Law Firm at (612) 424-0398.
Source: “When You Die, Who Can Read Your Email?,” by Rachel Emma Silverman, published at WSJ.com.
