Bill to protect digital assets ready for signature

 

DOVER – A first-in-the-nation bill to protect a deceased person’s digital assets with the same legal framework used to govern physical documents and records left in the hands of heirs and executors passed the Delaware General Assembly Monday and is ready for the governor’s signature.

House Bill 345, titled the Fiduciary Access to Digital Assets and Digital Accounts Act, was crafted by Rep. Darryl Scott in cooperation with the Uniform Law Commission and cosponsored by Sen. Bryan Townsend. It received bipartisan support in both chambers of the General Assembly.

The bill addresses a growing problem facing families and the legal professionals who guide them through the realm of estates, wills, trusts and probate after the death of a loved one. More and more frequently, attorneys and survivors are finding it difficult or impossible to access and manage the online accounts and assets of the decedents whose estates they’re responsible for settling. Often, the user agreements for websites and other digital services stipulate that no person other than the user is entitled to access his or her accounts.

According to the bill, digital assets such as email, cloud storage, social media, health records, content licenses, databases and more would be deemed a part of a person’s estate upon death, and the entities who control access to those assets would be required to provide the legal executor with control over the deceased’s digital assets. That means they would be obliged to provide whatever username, login and password information necessary to access the decedent’s accounts.

Language in the bill also voids any user agreement that would prevent the passage of digital records to a fiduciary, unless the user took specific, separate action to do so.

The legislation would also apply in cases where a person becomes incapacitated and his or her assets come under the control of a fiduciary or power of attorney. It would not preclude a person from stipulating in his or her will any specific instructions about the handling of digital assets after death.

House Bill 345 would be the first comprehensive law of its kind in the United States. Seven other states have passed laws dealing with the digital assets of decedents, but the definitions used vary along with the level of access granted to fiduciaries, according to the Uniform Law Commission.

Rep. Scott drafted this bill after talking with a constituent in his district, who was refused access to an email account held by her late husband. Even though his will named her as the executor of the estate, the email service provider would not allow her to sign into the email account. Eventually, the provider agreed to delete the deceased’s account and all its stored information, but never allowed the content to be reviewed.

“Years ago, when people kept all of their important documents in a filing cabinet or desk drawer at home, settling the affairs of a deceased family member was usually a straightforward process, if not a time-consuming one,” said Rep. Scott, D-Dover. “Today, with more and more vital records, assets and personal information generated and stored in digital form, we need to make sure that families don’t lose the ability to handle their loved ones’ estates in a responsible, comprehensive manner.

“An email account, probably the most basic component of anyone’s digital life, can hold all kinds of important information about you—financial, medical and otherwise,” Rep. Scott added. “Not to mention the sentimental artifacts, the messages, the photos our families may want to keep after we pass away.”

Sen. Townsend, D-Newark, said the legislation will enable Delaware law to be at the forefront of adapting to today’s technology.

“The popularity of dealing with personal affairs online has exploded in recent years because it’s often so much more efficient and consumer-friendly than traditional paper-based methods,” Townsend said. “The frustrations faced by people trying to obtain critical information from the online accounts of their late or incapacitated loved ones represent an increasingly common challenge that stems from the popularity of the digital world. This bill will help to create a solid bridge over these challenges, and connect the digital world with the traditional paths we must painfully navigate when a loved one passes or becomes incapacitated.”