Sunday, August 17, 2014
Suzanne B. Walsh recently published an article entitled, Coming Soon to a Legislature Near You: Comprehensive State Law Governing Fiduciary Access to Digital Assets, 8 Charleston L. Rev. 429-449 (2014). Provided below is an excerpt from the article:
I. INTRODUCTION: WHY DRAFT A UNIFORM LAW ON FIDUCIARY ACCESS TO DIGITAL ASSETS?
The vast majority of Americans use the Internet and many have online access to their financial accounts. 1 Domain names and other digital assets can have significant monetary value. 2 It's now often more convenient to bank online than to bank in a branch office. 3 To prevent identity theft, fiduciaries must monitor and protect - perhaps simply by termination - an incapacitated person's or decedent's online accounts. 4 Most agreements governing online accounts ignore death and incapacity altogether, or worse, they provide for automatic account termination if either occurs. 5 Only seven states have enacted legislation specifically granting some fiduciary access to digital assets. 6 This means agents, conservators, trustees, and even personal representatives are often hampered when administering modern estates, trusts, and accounts. The management and transfer of digital and traditional assets accessed by or held in online accounts requires compliance with internet-based service agreements. 7 Since fiduciaries are obligated to collect and preserve the assets of the estates they manage, any impediments to access are potentially damaging. 8
Digital assets can also have significant sentimental value. Grieving family members and friends frequently search for answers, comfort, and support in the social media accounts of their deceased relatives and friends. For example, teenager Eric Rash's parents, Ricky and Diane Rash, were the driving force behind Virginia legislation that grants parents postmortem access to a minor's Facebook account content. 9 Others find comfort in saving and ...