Government and Law

New law allows access to online accounts after death

Measure takes guesswork out of who has rights to digital access.

April 8, 2016
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A new law will ensure people’s online lives will be accessible after their death.

Gov. Rick Snyder signed the Fiduciary Access to Digital Assets Act into law at the end of last month, adding Michigan to the growing list of states adopting laws related to the management of digital assets.

The new law, which was introduced by Rep. Anthony Forlini (R-Harrison Township), is designed to protect people’s digital assets after death or incapacitation by treating them similarly to tangible property.

Under the new law, an individual can designate someone who will be given access to their social media and email accounts as well as any other online assets they might have.

“Our most precious memories and most important documents are no longer stored in shoeboxes or three-ring binders, but they instead exist digitally in a cloud,” Forlini said. “When planning for the future, these assets should be given the same protection as their tangible counterparts.”

Forlini noted the challenges families have faced without any laws available to help them gain access to a loved one’s digital assets.

“Traditional probate law does not currently address digital assets, which has left courts, families and technology companies unsure of how to divide and grant access to digital assets and accounts when a loved one dies or becomes incapacitated,” he said. “This law will give structure to this process, while clarifying the issue of ownership rights and create a framework to protect our most important information and memories.”

Jessica Schilling, account executive with wealth management firm Legacy Trust, said up until now, many estate-planning attorneys have been advising clients to leave a list of passwords for their families and to include a clause in the person’s will or trust addressing digital assets.

“Usually stating that the named fiduciary had authority to access,” Schilling said. “This only worked if the digital custodian was on board.”

If not, Schilling said, “All those photos on Instagram were locked up, or people would be posting to a Facebook page not knowing the person had died, and the family or friends had no control or options.”

Under the new law, an individual can name either a fiduciary or a designated recipient to have access to online accounts.

“This takes the guesswork out of who has the rights to your digital assets — or who does not, which may actually be the most important aspect for some,” Schilling said.

Schilling said not only does Michigan’s new digital assets law allow access to a designee, but also it allows someone not to designate access to their online accounts if they choose.

“I think the ability to block disclosure or access is a big deal,” Schilling said. “I see this being important in blended families: not wanting the stepchildren or stepparent to have access to your Facebook, Instagram or email accounts.

“Also, I can see the ability to only grant partial disclosure or access being important. The fiduciary can see pictures but cannot see X, or can access this digital asset but not the other one.”

The law also makes clear a digital custodian is not required to disclose a digital asset that has been deleted.

“So if the person was using a pseudonym for another account and deletes it prior to death, the friends or family may never know,” Schilling said.

The new law should help families as they navigate the loss of their loved one by taking away one avenue of frustration that can arise during the grieving process, she said.

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