One of the main problems competent and thorough estate planning resolves is the issue of access to assets that are titled in the name of someone who is unable to act due to incapacity or death. A detailed estate plan will often include a revocable living trust, a property power of attorney, and a pour-over will that will give specific permission to an individual or an institution to manage a person’s finances under such circumstances without the need to involve the courts.
Even without a thorough estate plan, loved ones of an incapacitated or deceased person will eventually be able to access assets after going through the court procedure of a conservatorship or a probate. Although it is far preferable to avoid these court procedures due to their additional delay, cost, and administrative hurdles, at least there is a mechanism recognized by law that allows access to an incapacitated or deceased person’s assets in order to move forward with the administration or settlement of an estate.
The need to access an incapacitated or deceased person’s estate has long been recognized by the law. However, a California Assembly Bill that was proposed earlier this year might dramatically change this practice with respect to digital assets.
California Assembly Bill 691 (“AB 691”), also known as the “Privacy Expectation Afterlife and Choices Act (“PEAC”) would require that a person during his/her lifetime specifically express the consent to the disclosure of digital assets such as email, social media accounts, financial accounts, blogs, listservs, online stores and auction sites, online accounts, and cloud storage accounts that might house sentimental pictures and documents.
Access to digital assets can be important. For example, the San Jose Mercury News recently ran an article detailing a father’s repeated attempts to access his deceased daughter’s electronic files that were kept online in a cloud storage service. His daughter was a novelist and she had many unfinished manuscripts that he wanted to access for sentimental reasons and to preserve her legacy but constantly ran into road blocks. (See “Who owns your digital afterlife?” by Matt O’Brien, posted August 28, 2015.)
Providers of digital services are often hesitant to grant access to such accounts as they express a worry about the privacy of their users and, from a practical standpoint, probably prefer not to be “bothered” with constant requests from estates seeking access to such information. The proposed legislation is designed to balance these issues.
The summary of the proposed legislation reads in part: “The bill would additionally permit a provider to disclose contents of communications or stored contents if an executor, administrator, or trustee gives the provider documents and information, as specified, including a will or trust showing the decedent’s express consent for disclosure of the contents.”
While it was always important to execute an updated and detailed estate plan to allow for efficient administration of one’s estate in the event of incapacity or death, with respect to digital assets, this proposed legislation will make it almost mandatory. Some digital providers such as Facebook allow for users to express their intent regarding how to handle their digital assets after death through selecting certain settings. However, it is also important to specifically address the issue in an estate plan.
A detailed and updated estate plan will include specific language in both the revocable living trust and the property power of attorney that grants access to digital assets. Furthermore, there should be a specific assignment transferring digital assets to the living trust. Under the current legislation, this will give executors, administrators, and trustees the best chance to access what could be very meaningful treasured memories.
KRASA LAW, Inc. is located at 704-D Forest Avenue, Pacific Grove, California and Kyle may be reached at 831-920-0205.
Disclaimer: This article is for general information only. Reading this article does not establish an attorney-client relationship. Before acting on any of the information presented in this article, you should consult a competent attorney who is licensed to practice law in your community.