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Digital Estate Plans in Michigan

Clarkston Legal Aug. 30, 2016

In the modern era, most people have dozens of electronic accounts making-up an electronic profile and creating a digital estate. What happens to your digital assets on death, or upon your incapacity? Do you have a digital estate plan?

The New Act

Earlier this summer, the Michigan legislature addressed these questions when passing the Fiduciary Access to Digital Assets Act; an act closely modeled on a well-thought-out uniform act.

In this digital age, our personal, business and financial activities are stored and maintained electronically, each with online access. We shop, bank, invest and pay bills online; we keep up with family and friends, and transmit communications online; family photos and important documents are stored in the cloud. These electronic accounts make-up a person’s digital estate.

Digital Custodians

Digital custodians typically are companies that store your electronic data. Examples are Google, Facebook, banks, and financial institutions.

Under the new law, four categories of people can legally request access to the information held by the digital custodian(s) of your accounts. These include: a power of attorney, personal representative, trustee or conservator.

These custodians control access your digital assets in the event of your incapacity or death. Problem: how do family member access financial information, tax returns, or treasured photos when digital custodians refuse access to your accounts?

Some digital custodians offer an online tool that would allow users to direct the custodian to disclose the user’s digital assets to a selected individual. Until recently, short of giving a list of all of your online accounts together with passwords to the selected individual, this online tool was the only way to insure that family members or other designated individual would have access to your digital assets when necessary.

Directing Your Digital Assets

Digital asset direction using an online tool still overrides a user’s directions to the contrary in a written document. Under the new statute, a user may now direct a designated digital custodian to disclose some or all of the user’s digital assets to a fiduciary through a will, trust, or power of attorney.

Thus, while the new act allows a fiduciary to direct the digital custodian to terminate the user’s account, it does not expand or provide any new rights to the fiduciary. Nor does the act change the rights of the digital custodian or user under the terms-of-service agreement. To obtain your digital asset content, your fiduciary must supply the digital custodian with a written disclosure request and a copy of the fiduciary’s authority.

The act gives the fiduciary the same rights to digital assets as the owner. However, a fiduciary cannot impersonate the owner. The digital fiduciary has the same duties to manage your digital assets as a fiduciary managing your tangible estate.

Get a Digital Estate Plan

Contact our office for a free consultation on how to include your electronic assets in your digital estate plan.