Dyeing With Digital Direction

April 5, 2016

The old adage that the law is one step behind the times, certainly applies to the technology field.  Technology normally stays one step ahead of the legal concepts and governing rules that are attached to it.  There is no exception to the intersection of estate law and technology, specifically as it relates to the digital estate.  With the streamlining and convenience of life within the digital age and the increasing connectedness with which the digital life is lived, society must be mindful to those who are left to manage the digital estate upon death.
With the increase of digital technology, more so in the last few years, the law is just starting to catch up.  Late last week Michigan’s Governor signed into law Bill 5034 which made Michigan the 19th state to pass legislation regarding the outcome of a deceased person’s digital affects.  The new law allows an executor of an estate to have access to certain digital assets like social media accounts or email in order to close a decadent’s estate.
For years, digital assets belonging to person have largely been subject to the policies of the respected digital custodian such as Dropbox, Facebook, Twitter, or Google.  These policies are usually contained within the custodian’s site disclosures, such as their terms of use or privacy policy, many of which people do not read.  Thus, when a person passes away it leaves questions as to who owns the content and who has rights regarding the content which could hold information and materials relevant to the estate of the deceased.
As the representative who introduced the bill stated,

Courts are in uncharted territory on this issue. . . traditional probate law does not currently address digital assets which has left courts, families and technology companies unsure of how to divide and grant access to digital assets and accounts when a loved one dies or becomes incapacitate.

As the problem continues to draw more light the Uniform Law Commission has proposed model legislation known as the Fiduciary Access to Digital Assets Act, in order to help states with the ever increasing legal issues arriving out of digital estates.  While theoretically the same ideas may encompass the assets of a digital estate that would encompass a traditional estate, the multitude and complexity of digital assets compounds the problem.  Traditionally, the process of closing an estate would encompass a search of the decedent’s records, accounts, and bills, which could be obtained by a glance at records or through incoming mail.  However, with the increase of the digital affects there is no longer the easily accessible paper trail or that paper trail may even be locked in password protected accounts, which an executor may not be able to access.
This is an issue that will continue to rise in the coming years. As such, both the Uniform Probate Code and the Uniform Trust Code should be changed to address the increasing digital assets that are being acquired and will need to be disposed of.  More importantly, lawyers need to increase the amount of information relayed to clients and have talks about the disposition of the digital estate and discuss the important of keeping this information up to date and accurate.