Obtaining Access to the Digital Assets of a Deceased Person

What are Digital Assets

In today's world, almost everyone has email or a social media account of some type. Some own websites. Until recently, it was difficult for fiduciaries to access digital assets. Sometimes knowing the password is not enough. The companies controlling social media accounts and email accounts often have their own rules which prohibit the transfer of an account or which terminate the account upon death. In the context of someone who has died, control over these digital assets becomes very important, as these items may prove useful to the fiduciary in locating assets, securing the digital assets and shutting them down if appropriate.

New Jersey Enacts Law to Provide Access

In December 2017, the state of New Jersey adopted the Uniform Fiduciary Access to Digital Assets Act. Basically, the Act provides executors, trustees, guardians, and power of attorney holders (“fiduciaries”) with the ability to access and control “digital assets” belonging to decedents, beneficiaries and wards. “Digital Asset” is broadly defined under the Act as any electronic record, and including email accounts, social media accounts, virtual currency accounts (e.g., Bitcoin), domain names, blogs, photos and videos posted to the Internet, music sharing services, cloud based storage accounts and more. It does not, however, include any digital assets maintained by an employee in a business setting.

The person whose account is sought to be accessed may give permission to a designated authorized person during his or her lifetime by using online tools developed by the “custodian of the account” (ie. Facebook or Yahoo). If this is not done via the individual account holder, the user may allow or prohibit in their will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user.

The Act specifically provides the type of information that the fiduciary is required to supply to the custodian of the account, depending on the relationship of the fiduciary to their user. We highly recommend that Wills and Powers of Attorney be reviewed and updated to ensure that your fiduciary is provided with access to this information if this is your desire.