Consider Legal Issues & Solutions
Including Digital Assets in your estate plan requires consideration of many different laws. It is worthwhile to consult with an attorney as you make a plan for what should happen to your digital assets in cases of incapacity or death.
California’s New Law addressing Fiduciary Access to Digital Assets (translation: who can see my online account when I die?) can be found at - See Cal. Probate Code Part 20 Section 870 et. seq.
This law offers a structure for tech companies and fiduciaries (translation: someone taking care of another person’s estate after death) to interact around the issue of ‘what can or should we do with the digital assets of this person who just died? The law passed in January 2017. Many companies do have some sort of policy in place around this issue, but this provides clear information about what should be in that policy. The law also lays out procedure for how a fiduciary can request information or access to the account of a deceased person from a tech company.
Ownership of online assets is not a straightforward concept. Most online accounts are governed by their Terms of Service, which is the contract you agree to upon signing up for and continuing to use their produce or online service. Intellectual property concepts and copyright law are relevant for the majority of online content.
Online Privacy is governed by Federal law. Internet companies, especially those providing platforms for private communication, are bound to comply with those laws. This is a good thing. We do not know how Federal privacy law and State Probate Codes providing procedure for accessing the online correspondence of a deceased person will interact yet.
Anti-Hacking Laws exist at both the State and Federal levels. If your loved one is incapacitated or has passed away and you access accounts or devices that your loved one had permission to use, but you do not have permission to use, you might be liable, even for inadvertent access under anti-hacking laws.
Updating Your Current Estate Plan documents to include your digital assets is a good idea, though be aware of broad language and sweeping clauses that do not define your assets clearly. Though I do not know of any California wills or trusts that have been tried and proven effective at accessing digital assets after someone’s death, I think there is good language and planning that could compel a tech company to release assets while decreasing the liability for the person you want to have access them.