In what is perhaps a sign of things to come, lawmakers in Delaware recently passed a law that made the state the first to grant executors broad digital estate planning rights. The law gives those appointed to oversee the estates left behind by deceased people the right to access their digital assets. It also gives people named as guardians or conservators over incapacitated people the right to do the same.
While Delaware law does not apply in North Carolina, it’s worth considering the issues this law raises, as questions about digital estate planning have become more and more common in recent years.
Digital Estate Planning
The new Delaware law gives executors and other fiduciaries some specific rights when it comes to digital estate planning. For example, when a person dies, the ability to access that person’s digital assets often dies with them. Many Internet companies, such as Facebook and Yahoo, have denied executors and other fiduciaries the ability to access a deceased person’s digital assets.
The Delaware law is designed to address this situation and give executors and other fiduciaries expanded rights when it comes to accessing digital assets. Specifically, it grants a fiduciary who has authority over any digital assets left behind by a deceased or incapacitated person the legal right to have the same access to those assets as the original account holder. This would mean, for example, that should you become incapacitated, the person to whom you grant durable financial power of attorney would have the right to access your online bank accounts, E-mail, and other assets necessary to properly manage your affairs.
Delaware’s Digital Estate Planning Law
Delaware adopted its digital estate planning law after the Uniform Law Commission created its uniform fiduciary access to digital assets act, or UFADAA. The Uniform Law Commission is a nonprofit organization of attorneys, judges, and legal experts that convenes on a regular basis to draft model laws. These laws are designed so that state legislatures can adopt a uniform set of laws. Delaware is the first state to officially adopt the UFADAA proposed model as official state law, though it may not be the last.
Digital Assets and North Carolina
Even though Delaware’s law does not directly apply to residents in the Greensboro, North Carolina area, it can serve as a useful guide to your own digital asset planning. Using the Delaware law’s example, you can decide what you do, and do not, want your fiduciaries to be able to access should you die or become incapacitated. Beyond that, more advanced estate planning techniques would allow you to actually choose which state’s laws applied to your estate plan. Should you choose this option, there is no reason why you cannot choose Delaware’s digital asset law to give your executor broader authority.