Accessing Digital Assets Upon Death

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It’s easy to ignore your digital assets, such as social media accounts, email accounts, music, photographs, or any other information stored digitally when planning your estate. However, your digital assets, specifically access to your digital assets, should be addressed in your estate plan. Although some of your digital assets may not have much, if any, monetary value, your photographs may have great value to your heirs, while emails containing information regarding your financial accounts will be of great importance to the administrator of your estate.

In North Dakota, to help with the issue of accessing digital assets, the legislature has codified portions of the Uniform Fiduciary Access to Digital Assets Act in Chapter 47-36 of North Dakota Statutes. Under Chapter 47-36, you may direct the custodian of your digital assets (e.g., Apple or Amazon) to provide your personal representative or attorney-in-fact with access to your digital assets. You may do so by either utilizing an online tool provided by the custodian or by making such a directive in your last will and testament or power-of-attorney document. N.D.C.C. § 47-36-03.

While providing access to an attorney-in-fact or personal representative through any available online tool, as well as through your last will and testament and power-of-attorney document is recommended to ensure your digital assets can be accessed in the event of incapacity or death, you will need to keep all directives updated. If the directive in an online tool conflicts with that of your last will and testament or power-of-attorney document, the online tool will control. N.D.C.C. § 47-36-03. This could result in an outdated directive in an online tool overriding your last will and testament or power-of-attorney document.

If access is not provided to your personal representative or attorney-in-fact through an appropriate directive, it will be much more difficult for either to gain access to your digital assets. Under sections 47-36-06 and 47-36-07, a court may direct the disclosure of a deceased person’s electronic communications and digital assets to a personal representative, but the personal representative must first seek a court order granting such access, consuming time and adding cost to the administration of your estate. An attorney-in-fact that is not granted access to digital assets in the power-of-attorney document will have even more trouble gaining access as no provision allowing a court to grant access to an attorney-in-fact is contained in Chapter 47-36. Consequently, granting access to your digital assets as part of your estate plan is vital.

Additionally, as a practical matter, enclosing a list of your digital assets, along with your usernames and passwords, in your estate plan will be of tremendous value to your personal representative or attorney-in-fact. Most of us have so many accounts for email, social media, online banking, and document storage that we struggle to remember which username and password is for which account. Imagine the confusion and frustration of a personal representative or attorney-in-fact in trying to access your digital assets without first knowing what digital assets you own. Rather than sorting through your information to figure out where your digital assets are located, your personal representative or attorney-in-fact will be able to more efficiently manage your affairs if he or she is provided with this information as part of your estate plan. Because this is sensitive information, it need not be shared with your personal representative or attorney-in-fact immediately, but they should know where to locate it in the event this information is needed and you are not able or around to provide it. As an added bonus, gathering and organizing your digital assets will provide immediate benefit to you by helping you inventory your current accounts, match usernames and passwords to accounts, and get rid of accounts you no longer use.

If you need assistance setting up or updating your estate plan documents, contact Steven Welle, estate planning attorney at O’Keeffe O’Brien Lyson Attorneys. Call him at 701-235-8000 or toll-free at 877-235-8002.