What is the Latest on Digital Assets Law?

That is actually a timely question, especially since I have not written on the topic since April.

A new California law went into effect recently with "tech" backing. The law provides a road map of sorts for handling the emails, social media accounts and other digital assets when the owner dies.

In practice, the law creates a three-tiered approach when designating who has the authority to access such online data postmortem.

Here is how the tiers work:

1. The "default" is to consider any intent expressed by the decedent user via an online tool.
2. If there is no intent expressed, then the fiduciaries and data-holding companies would consider any direction left in a will.
3. Failing either the default or testamentary directions, the terms of service for each individual site will be control.

A recent article in The Recorder, titled “Digital Assets Bill Gets Governor's Signature,” reports that the new law is a stricter version of model legislation known as the Revised Uniform Fiduciary Access to Digital Assets Act.

For its part, the model legislation has been used as a template for similar laws in 11 states.

Digital asset legislation has been introduced in more than 18 other states, according to the Legislature and the National Conference of State Legislatures.

The bill received strong support from social media and search companies such as Facebook, Google, and Yahoo, along with other data-holding companies and tech trade associations.

This latest California law offers liability protections for companies that comply in good faith with the data-handling provisions. Understandably, the only exceptions are in cases of gross negligence or willful misconduct.

The new law was not without opposition.

Civil liberties and privacy groups believed the broad grant of immunity is overreaching.

In addition, they argued that an online tool should not be given precedence over a decedent's will, power of attorney or other legal documents.

As you can see, the law regarding estate planning for digital assets continues to develop.

Stay tuned. 

Remember: “An ounce of prevention is worth a pound of cure.” When making your financial, tax and estate plans, do not go it alone. Be sure to engage competent professional counsel.

For more information about estate planning in Overland Park, KS (and throughout the rest of Kansas and Missouri), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: The Recorder (Sept. 26, 2016) “Digital Assets Bill Gets Governor's Signature”