New Rules for Digital Assets

For years, I’ve been advising my clients to include in their estate plans instructions for their “Digital Assets” (things like email accounts, social media, domain names) because the law hasn’t caught up with technology. I just learned that California is taking a big step to change that.

Last week, I attended the Kasner Estate Planning Symposium, sponsored by Santa Clara University. Among the many new changes I learned about was AB 691, which is California’s version of the Uniform Fiduciary Access to Digital Assets Act. This new law was just passed by the legislature and signed by Governor Davis on September 24, 2016. So far, about twenty other states have passed similar legislation, with more pending.

Some highlights of the new law, which takes effect January 1, 2017:

• Companies can create an “online tool” to allow you to provide instructions to disclose (or not disclose) online information to your agents
• You can also provide instructions for digital assets in your will, trust, or power of attorney.
• Companies are now required, under specified circumstances, to disclose information to your agents if you consented to that disclosure either using an online tool or legal document.

In short, we finally have a legal framework for how digital assets are handled after a person passes away. Of course, this doesn’t mean you can ignore your digital assets. Your agents still need to know where your accounts are in order to access them, and will need those instructions as part of their request.

The more our lives become digital, the more thought you may want to put into these assets. If you don’t want everything you have online disclosed, it’s worth spending some time cataloging your digital assets and specifying which you want disclosed and which just closed.

Like all new laws, time will tell how well it works in practice, but having a uniform set of rules seems like a great first step in this arena.