Digital Assets in the Internet Age

Robert Shaw - Digital Assets - Digital Assets in the Internet AgeIn the internet age that we are all now living in, one doesn’t always stop to think about our online accounts as being assets of our estate.

The fact is, however, that due to our ID and password, each of these accounts belong to us individually. When an individual passes away, if can be very difficult for family members, or the estate executor, to gain access to the online information. When an online account is established, an individual generally first has to sign what is called a Term of Service agreement (TOS), which is the language at the bottom of the page. People often just skip over this section and click “Agree.”

It is a contract, however, which spells out what the privacy rules are which apply to the account, and they prohibit third-party access to the information. In recent years, many states have begun to pass legislation to establish procedures on how these online accounts can be accessed by third parties when the account holder dies. The Uniform Fiduciary Access to Digital Assets Act was adopted in 2014 to act as a guide to the state on procedures to assist in implementing laws to assist authorized individuals to gain access to the records when the account holder dies.

New York, as of September 2016, has now joined the list of states that have passed digital laws. In New York, the new law can be of assistance to four categories:

  1. Personal representatives, such as the executor of a will;
  2. Guardians;
  3. Agents under a power of attorney; and the
  4. Trustees of a trust.

It is a good idea, when you sign a will, trust, or power of attorney, that you make sure language is included regarding access to digital assets on the death or incapacity of the account holder.

We should all make an inventory of all of our user IDs and passwords for our trusted family member or designated person. This list should be updated on a regular basis, or certainly with frequency, as it certainly will often change. I suggest you discuss updating your current documents with an attorney, to include “digital language.”

Robert Shaw

Robert W. Shaw, Esq.
(914) 328-1222

E-mail Bob


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Robert W. Shaw is licensed in New York.