Most of us, when asked to identify our “assets”, will easily remember those items of real or personal property that can be seen or touched; that is, our house, vehicles, jewelry, etc. With a little more thought, we will likely remember our bank accounts, certificates of deposit, stock portfolios, retirement plans, and 401 (k) accounts as part of our assets. However, relatively few people are able to identify their “digital assets” as a property of value. “Digital assets” refers to email and Internet accounts, websites, domain names, and photos or videos stored on personal computers or “in the cloud.” However, who knows, the next big business plan or design may currently reside in complete anonymity somewhere in your electronic files.
Consider for a moment that your digital assets may include property you own that has substantial financial or sentimental value. Also consider that this valuable property may remain undiscovered and forever impossible to discover if you were to pass away unexpectedly. If that happened, would your loved ones know what treasures are buried in your laptop or shrouded in the cloud? If they do, could they access them? Now, perhaps, those hidden treasures can be found and perhaps used by those to whom you leave such a reward.
If, like me, you enjoyed children’s tales of pirates looking for buried treasure, let me suggest that we now have a kind of map to discover buried treasure in cyberspace. I am referring to the Revised Uniform Fiduciary Access to Digital Assets Act that has been adopted by twenty (20) states, including Oregon and Washington. The Act will go into effect here in Oregon on January 1, 2017. Thereafter, the personal representative you name in your will will be able to access your digital accounts after your death to the same extent that they would if you were still alive. .
The drafters of the law undoubtedly understood that some people might be less than enthusiastic about allowing their loved ones access to their post-mortem email communications. The law allows you to leave specific instructions in your will that prohibit such disclosure. Therefore, while the Act is intended to facilitate a trustee’s ability to discover and manage digital assets, it also respects the account owner’s reasonable expectations of privacy.
For a more detailed explanation of the law, review the preliminary note prepared by the commission that wrote the model law. We will be interested in watching and seeing if this new law helps unlock hidden treasures.
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