Authored by Julie A. Wanie, Marketing and Web Site Coordinator.
When my last remaining parent passed away a few years ago, my sister and I knew exactly where to find all of our father’s financial paperwork-a rustic chest that was originally used to store player piano scrolls conveniently located in the family room for over 40 years. Copies of handwritten tax returns, bank and investment statements, and even military service paperwork had been neatly stored, completely unsecured, in this family heirloom. Lucky for us, this retired IBM mainframe computer salesman never had the desire to go digital himself. We didn’t have to hunt for passwords or search electronic files to find what was needed to settle his estate.
Today, it’s much more likely that everyone will leave a footprint in the digital world. Information and data stored on computers, smart phones, email accounts and social media (Facebook and the like) are all examples of what is being coined “digital property” or “digital assets.” Not only will the task of locating important documents become even more of a challenge (think Turbo Tax accounts), but access to digital assets is currently not an automatic right given to a personal representative or trustee in charge of settling an estate.
Adding to these complexities are the wide variety of disclosures in the Terms of Service Agreements that digital service providers require you to accept at the time of sign-up. These agreements can make it difficult for someone to get access in order to preserve any data or even terminate the user’s account in the event of death or incapacity.
In July of this year, the Uniform Law Commission approved the Uniform Fiduciary Access to Digital Assets Act. The Act provides that if a fiduciary would have access to a tangible asset, that fiduciary would also have access to a similar type of digital asset.
Recognizing the need for legislation in this area and aware of this Act, the Real Property Probate & Trust Section of the Wisconsin State Bar is working toward establishing a Wisconsin statute addressing digital property issues. Whether Wisconsin adopts the Uniform Act in its entirety or some version of it, Wisconsin should have a new digital property law within the year. In the meantime, though, you should consider taking some steps on your own.
Specifically, you should create an inventory of everything you’ve placed in the digital world and a corresponding roadmap for your personal representative or other fiduciary to follow for access to such property. The new legislation is expected to provide a legal framework for gaining access to digital property, but if you have strong feelings about how such property should be preserved, protected, distributed or terminated, you should leave clear, detailed instructions documenting your wishes.