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Laws Empowering Estate Fiduciaries to Access and Control an Estate’s Digital Assets Gain Momentum

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Laws Empowering Estate Fiduciaries to Access and Control an Estate’s Digital Assets Gain Momentum

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In December 2012, I published an article in the New Jersey Law Journal entitled “Death in the Digital Age: An exploration of the issues that arise when disposing of a decedent’s online materials.”  The article examined the problems that occur in administrating a twenty-first century estate.  For example, can personal emails be accessed by an estate’s executor or administrator?  In a major step in bringing clarity to questions involving the administration of digital assets, Delaware recently passed the Fiduciary Access to Digital Assets and Digital Accounts Act, a law providing additional control and authority to estate fiduciaries.  The synopsis of the legislation states in part as follows:

Recognizing that an increasing percentage of people’s lives are being conducted online and that this has posed challenges after a person dies or becomes incapacitated, this Act specifically authorizes fiduciaries to access and control the digital assets and digital accounts of an incapacitated person, principal under a personal power of attorney, decedents or settlers, and beneficiaries of trusts.

The law was based on the “Uniform Fiduciary Access to Digital Assets Act,” which had been drafted by the Uniform Law Commission.  While Delaware was the first state to pass the Uniform Act, other states, including New Jersey, has considered legislation affecting the administration of an estate’s digital assets.  New Jersey’s legislation provides that

The executor or administrator of an estate shall have the power where otherwise authorized, to take control of, conduct, continue or terminate any accounts of a deceased person or any social networking website, any microblogging or short message service website or any e-mail service websites.

New Jersey’s bill was introduced in the Legislature on May 15, 2014 as has been referred to the Judiciary Committee.

The movement to empower estate fiduciaries to control digital assets is not without controversy.  Concerns remain that such laws conflict with the privacy of the decedents and with other laws, such as the Electronic Communications Privacy Act which prevents unauthorized disclosure of electronic communications.  Despite these issues, it appears that laws, empowering estate fiduciaries to gain access and control over an estate’s digital assets, are gaining traction.  In the future, as digital assets become increasingly important, the wall separating digital property from personal and real property will vanish and estate fiduciaries will likely have full control over a decedent’s digital assets.

About the author: Andrew P. Bolson, Esq. is an attorney with Meyerson, Fox, Mancinelli & Conte, P.A. in Montvale, New Jersey. Andrew’s practice focuses on commercial and estate litigation, business law, real estate law, estate planning and privacy and Internet law.

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