Establishes the "access to digital assets act"

Summary of specific provisions

Section 1 provides definitions

Section 2 provides definitions.

Section 3 addresses that this bill will provide authority to a fiduciary only.

Section 4 addresses how a personal representative shall control digital property of a Decedent. The bill provides that the personal representative may exercise control over the decedent's digital property to the extent permitted under applicable law and a term-of-service agreement.

Section 5 addresses how a Conservator/Guardian can be authorized by the Court in the control of digital property for a protected person. A Court Order has to be signed and it must address the type of authority that shall be granted to the Conservator/Guardian.

Section 6 describes the control of digital property by an agent under the Power of Attorney. The Power of Attorney shall be subject to terms-of-service agreement and/or governing instrument.

Section 7 addresses that a trustee may exercise control over and rights in any digital property according to the terms of the Decedents trust. (See committees concern regarding if there should be any limits on a trustee's actions.)

Section 8 discusses Digital Property Recovery from Custodian. Custodian is previously defined in Section I,

Section 8 further provides a fiduciary under the bill to have lawful consent of the account holder and provides authorization to the fiduciary under all applicable state and federal statutes. Section 8 addresses that a fiduciary must make a written request and provide the requested documentation to a Custodian pursuant to subsection (b) and (c) of Section 8.

Section 9 provides that an interested party may file an objection to recover of a fiduciary's digital property. The objection by the interested party must be filed in Court. Pursuant to the objection, the Court will have a hearing to review the merits of the objection.

Section 10 provides a good faith standard for a custodian who acts upon the request of a fiduciary for digital property of a Decedent.

Section 12 provides how this bill will relate to the Electronic Signatures in Global and National Commerce Act.

Justification

The amount of digital assets accumulated by most individuals has grown tremendously in recent years. The evolution of online programs has led to Facebook, Twitter, online banking and a variety of other social media and internet-related applications. Currently, there are 30 million Facebook accounts that belong to persons who are deceased. *As the number of digital assets held by the average person increases, questions surrounding the disposition of these assets upon the individual's death or incapacity are becoming more common.

Few laws exist on the rights of fiduciaries over digital assets. These assets, including but not limited to online gaming pieces to photos, digital music, client lists, bank accounts, bill-paying, etc., have real value. According to a 2011 survey from McAfee, Intel's security-technology unit, American consumers valued their digital assets, on average, at almost 555,000.**

Some Service providers have explicit policies describing what will happen when an individual dies, others do not. Even where these policies are included in the terms of service, most consumers click through these agreements without every reading them.

Online companies believe that preservation of the privacy of their customers are paramount. However, individuals create estate plans where they select their executor and/or/trustee. The executor and trustee are tasked with marshalling the assets, Paying the decedent's debts and distributing the decedent's assets according to the decedent's wishes. Digital assets should be considered personal property and therefore should be allowed to be distributed according to the wishes of the decedent. Further, this bill will help to streamline the process for those families that are currently in court fighting for access to their loved ones accounts.

Prior legislative history

New Bill

Fiscal implications

None

Effective date

This act shall take effect on the 180th day after it shall have become a law. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made and completed oh or before such effective date.

* Blaha: Craig. "Over 30 Million Accounts on Facebook Belong to Dead People." - Technoratti Technology. Technornti, Inc., 07 Mar. 2012.

**Greene, kelly. "Passing Down Digital Assets."Wall Street Journal, 31 aug. 2012:n.pag.Web.