'Digital Assets' Focus of New Delaware Law

By Steve Anderson August 20, 2014

For anyone who's done a little estate planning lately, it can be kind of a bear, figuring out just what all a person has on hand and how to distribute said material after one's death. The picture only gets worse when the idea of “digital assets” are considered; not just the $50 or so in a PayPal account derived from eBay sales, but also things like social media profiles. Some estimates suggest that a Twitter account with sufficient niche followers could be valuable for advertisers, so determining ownership after death may be more important than some expect. A new law in Delaware, meanwhile, makes it much easier for the executors of estates to account for these assets.

The law in question, dubbed the Fiduciary Access to Digital Assets and Digital Accounts Act, essentially does just what the law's name suggests: it allows the heirs to and executors of estates of the deceased to gain access to and take legal control over an account or device. The underlying rationale here is that it's essentially the same thing as a document or a physical asset, just in a different format. Some states have already adopted provisions for just such an eventuality, like Idaho and Nevada, but these are limited in scope compared to the Delaware law. Some even project that the Delaware law may end up serving as a means to allow families—even those not residing in Delaware—to get access to that kind of protection.

Kelly Bachman, spokeswoman for the Delaware governor's office, offered up a statement explaining how the law could work, noting that it's largely a matter of what jurisdiction governs the will in question, not where the decedent actually lived.

However, the law has not been quite so well-received everywhere. Specifically, the sites that hold such accounts object to it. The standard reaction to a death in social media seems to be that when an account holder dies, that account dies with the holder. Indeed, back in 2004, Yahoo had an issue on this exact front when a Marine in Iraq was killed in action, but Yahoo refused the family access to that user's e-mail account. Word from DLA Piper attorney Jim Halpert further explains the companies' position, saying that laws like these take “...no account of minimizing intrusions into the privacy of third parties who communicated with the deceased.” Halpert also noted “The volume of email is far larger and people usually consider much more carefully what they write in a letter.”

Really, I don't see the cause for alarm. None of this really need be a factor; an old principle that guides much of the Internet is “On the Internet, nobody knows you're a dog.” So really, all a decedent would have to do is bequeath passwords and username data to heirs and the account could be operated as if said person were there. All that would really need be done is a means to allow any checks generated by said accounts—advertising revenue from websites or the like—to devolve to the executor of the estate, and that would be it.

Edited by Stefania Viscusi

Contributing TechZone360 Writer

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