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THE IMPORTANCE OF PLANNING FOR YOUR DIGITAL ASSETS

 Ever stop to wonder what will happen to your emails & Facebook photos after you’re gone? Now, it’s up to you.

  By

 Joseph N. Fearey

In 2016, Oregon became the first state to adopt the Revised Uniform Fiduciary Access to Digital Accounts Act (RUFADAA). Effective January 1, 2017, Oregon residents are now able to direct the disposition of their digital assets upon their death or incapacity. While RUFADAA offers more privacy protection for the content of your digital assets, the new law has also made it more important for your estate planning documents to specifically address the disposition of digital assets. Fortunately, updating your estate planning documents to take account of your digital assets can be a relatively straightforward process.

Understanding your Digital Assets

If you own a computer, odds are you have and use digital assets on a daily basis. The most common digital assets include digital photos, online blogs, audio and video files, emails, text messages, and other online content such as Facebook messages. While digital assets can be stored directly on your computer, we store the large majority of this content on Internet and cloud-based services, such as Instragram, Facebook, Gmail, Photobucket, and iCloud, to name just a few. However, people often fail to realize that once your digital content is uploaded to these Internet-based services, it becomes subject to each provider’s terms of services, which may (and often do) place significant limitations on who may access this content after your death.

While digital assets such as these typically have no extrinsic economic value, they often have tremendous sentimental worth to us, and our family and friends once we pass. For this reason, it is important to understand the potential fate of our digital assets in the absence of proper planning.

Why Planning for your Digital Assets is Important

Under Oregon law, fiduciaries (personal representatives and trustees) are generally authorized to take all necessary actions to administer the estate of a decedent. Under RUFADAA, in the realm of digital assets this authority permits fiduciaries to access a “catalogue”, or list, of digit assets, but does not automatically permit fiduciaries to access the content of your digits assets. In order for a fiduciary, friends, or family members to lawfully access the content of your digital assets, RUFADAA places great emphasis upon whether the deceased expressly consented to the disclosure of the content of the digital assets to the individual seeking access. Absent such consent, there may be no lawful way for friends and family to access your digital content, and the online provider’s terms of service will control. Often, these terms of service agreements grant the online provider authority to simply delete content.

To fully grasp the significance of RUFADAA’s “express consent” requirement, it is helpful to understand the distinction in the new law between “catalogue” and “content”.  A “catalogue” of digital information can be likened to a list of individuals with whom you have had a telephone conversation, along with the date, time and length of those conversations. “Content”, on the other hand, is akin to the actual recordings of those telephone conversations. The content of your digital assets, then, is the actual text of an email or text-message communication, the digital photograph itself, the recorded song or home video, or the substance of a Facebook message. While a catalogue of your digital assets may help your fiduciary identify what digital assets are out there, a list of file names and dates of email and text message communications may offer little solace to friends and family.

Furthermore, even if your fiduciary or loved ones are able to gain access to your digital assets through a list of passwords or other means, it is never advisable to do so. The Federal Computer Fraud and Abuse Act imposes both criminal and civil liability upon anyone who intentionally accesses a computer without authorization or exceeds the scope of authorization given. In additional, all 50 states have laws criminalizing unauthorized access or hacking of individuals computers and computer systems. Although it may seem unlikely that a family member or friend would be prosecuted for accessing a deceased loved ones account, doing so without express consent may nonetheless be illegal.

How to Plan for your Digit Assets after RUFADAA

At this point, you may be wondering what steps you should take to ensure that your family and friends are able to access your digital assets after your death. The simplest and most straightforward way to meet RUFADAA’s express consent requirement is to incorporate digital asset planning into your existing estate plan. This can be accomplished by incorporating a consent provision in your Power of Attorney and Will or Living Trust that authorizes your fiduciary to access a catalogue of digit assets, and expressly designates individuals, such as friends and family, who can access the content of your digital assets. This type of planning will ensure that those individuals designated will have access to the full content of your digital assets.

Much like our physical belongings, digital assets can be an invaluable part of the grieving process for those we leave behind. We should all take the time to make sure they are still available to our loved ones after we pass.

To speak with an attorney about digital asset planning and updating your estate plan, give us a call at (503) 248-9535.

Joseph N. Fearey is an Attorney at Smith, McDonald & Vaught, LLP. His practice includes estate planning, probate and trust administration.