[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Like most other States, Maryland has enacted the “Fiduciary Access to Digital Assets Act.” The statute permits the “user” of “digital assets” to authorize a designee to access specified digital assets after the user’s death or disability. It is codified in Md. Code Ann., Est. & Trusts Art., Title 15, Subtitle 6 (“ET”).
“Nothing is certain except for death and taxes.” For those who wish to do so, planning under the “Fiduciary Access to Digital Assets Act” may be appropriate.
Michael Berman.
The Maryland Fiscal and Policy Note, 2016 Sess., S.B. 239 (Feb. 18, 2016), states that: “The bill is a based on revised version of the Uniform Fiduciary Access to Digital Assets Act (UFADAA) drafted by the National Conference of Commissioners on Uniform State Laws (also known as the Uniform Law Commission (ULC)).” The Maryland statute should be construed to provide uniformity. ET §15-616. Most states have enacted the UFADAA. See Fiduciary Access to Digital Assets Act, Revised – Uniform Law Commission (uniformlaws.org)
The Fiscal Note states:
The bill enables a fiduciary to “step into the shoes” of the account holder. When taking action concerning a digital asset, a fiduciary is bound by the same authorizations and limitations that bound the account holder before the incapacitation or death of the account holder. Generally, unless a user specifically prohibits disclosure of digital assets, or a court order directs otherwise, a custodian must disclose, with appropriate authorization, at least a catalogue of electronic communications and other digital assets to the fiduciary. The content of electronic communications must also be disclosed by the custodian with proper authorization, as specified in the bill.
The Maryland Fiscal and Policy Note, 2016 Sess., S.B. 239 (Feb. 18, 2016).
Basically, the statute permits a “user” to override a contrary provision in a will or “terms of service” agreement to provide a designee with specified access to digital assets after death or incapacity. A “user” is an account holder. A “custodian” is “a person who carries, maintains, processes, receives, or stores a digital asset of an account holder.”
The designated person receives no “new or expanded rights other than those held by the user….” ET §15-604(b). The Unform Law Commission explains the act as follows: “When a person dies or loses the capacity to manage his or her affairs, a fiduciary receives legal authority to manage or distribute the person’s property as appropriate. Most people now have a great variety of digital assets, including photographs, documents, social media accounts, web sites, and more, some of which present special privacy concerns. Revised UFADAA provides the legal authority for a fiduciary to manage digital assets in accordance with the user’s estate plan, while ensuring that a user’s private electronic communications remain private unless the user consented to disclosure.”
A user may use an “online tool to direct a custodian to disclose to a designated recipient or not disclose some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.” That direction overrides a contrary provision in a will or trust. ET §15-603(a).
Alternatively, “the user may, in a will, trust, power of attorney, or other record, allow or prohibit 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.” ET §15-603(b).
If the user exercises either option, the direction “shall override a contrary provision in a terms-of-service agreement, if the terms-of-service agreement does not require the user to act affirmatively and distinctly from the user’s assent to the terms of service.” ET §15-603(c).
Facebook and Google have supported the uniform act. Fiduciary Access to Digital Assets Act, Revised – Uniform Law Commission (uniformlaws.org)
Facebook has a process to memorialize or remove an account. Request to Memorialize or Remove an Account | Facebook Help Center. Facebook states: “If Facebook is made aware that a person has passed away, it’s our policy to memorialize the account. Memorialized accounts are a place for friends and family to gather and share memories after a person has passed away. Memorializing an account also helps keep it secure by preventing anyone from logging into it.” Managing a Deceased Person’s Account | Facebook Help Center
LinkedIn states: “Memorialized accounts allow a person’s legacy to remain on LinkedIn after they’ve passed away…. If you’re authorized to act on behalf of a deceased member, and have the required information and documentation, you can request to memorialize or close their account…. If you aren’t authorized, you can only report a member as deceased.” Memorialize or Close the Account of a Deceased Member | LinkedIn Help. LinkedIn will request “Legal documents to show you have the authority to act on behalf of the member.”
Google permits personalized legacy settings. What Happens to Your Gmail Account When You Die? Here’s How to Control It (makeuseof.com)
If statutorily-mandated information is provided, a “custodian” of “digital assets” must disclose either the “contents” of communications or a “catalog” of them. Under ET §15-606, a user or court can direct disclosure of the contents of electronic communications. Unless the user prohibited disclosure of digital assets, under §15-607, “a custodian shall disclose to the personal representative of the estate of the user a catalogue of electronic communications sent or received by the user and the digital assets of the user, other than the content of the electronic communications….” [emphasis added].
Under ET §16-618, the statute applies to fiduciaries acting under a will or power of attorney, personal representatives, guardians, and trustees. ET §15-608 and 15-609 cover powers of attorney. Sections 15-610, et seq., address digital assets held in trust. Guardians of a protected person are addressed in ET §15-613.
Custodians may assess a reasonable administrative charge. ET §15-605(d). Milestones for custodian compliance are set in ET §15-615. The statute provides good faith immunity for custodians. A user cannot require a custodian to disclose user-deleted assets or make unduly burdensome requests. ET §15-605(c, d). The act does not apply to accounts accessed through an employer.
“Nothing is certain except for death and taxes.” For those who wish to do so, planning under the “Fiduciary Access to Digital Assets Act” may be appropriate.
