Many have observed that a legal problem arises when someone with digital assets dies or loses capacity, and as digital assets become more significant and widespread, the problem will become more serious. Digital assets are information and assets created and stored on the internet: these can take the form of emails, social media pages, photographs, videos and diaries; financial information which can lead to online bank accounts, savings and investments, PayPal, eBay, utility bills and shopping accounts; or intellectual property rights to assets which are created and exist only online, such as online gaming avatars and worlds, video clips on YouTube or blogs and e-books.
When someone dies or loses capacity, their executors or attorneys (known as fiduciaries) will need to access their digital assets just as they will the rest of their estates. Presently they will have great difficulty doing so because account holders are usually required by the terms and conditions of the internet service provider not to write down or pass on the passwords and account details to anybody. Even if they do that, fiduciaries are not allowed under the terms and conditions to access the digital assets. In addition to the terms of the internet service provider, there are frequently criminal and data protection laws preventing them from doing so. The only internet service providers which have expressly provided for this situation are Google with its Inactive Account Manager service and Facebook with its Legacy Contact service. Otherwise the only provision is usually that the account is deleted after a period of inactivity. Items of financial or sentimental value are therefore inaccessible to people's fiduciaries and consequently to their families. There is also an increased risk of dormant accounts being hacked and identity theft.
In the US, the Uniform Law Commission has approved the Uniform Fiduciary Access to Digital Assets Act (UFADAA) to deal with this problem. It will enable fiduciaries such as attorneys and executors to access the digital assets and deal with them as part of the estate of the account holder who can no longer do so. It will provide greater security from identity theft, and there is the assurance under existing laws that the fiduciaries have legal duties to the account holder or the beneficiaries of their estate that they administer the assets properly. The legislation has been prepared in a balanced way, respecting the privacy of the account holder and involving internet service providers so that they could put forward their case as well.
If an account holder does not want their executors to access their digital assets, they need only say so in their Will. In that case, though, they should make other arrangements to deal with them. Alternatively, if their digital assets merit it, they could ask their executors to take specialist intellectual property advice about them after their death, or even appoint executors who are specialists themselves.
The first US state to pass this legislation was Delaware in August 2014 and the hope of the Law Commission is that it will be passed in all the states in the United States of America, with limited amendments so that a uniform set of rules applies across the whole country. It is hoped that similar legislation will be passed in the UK and Europe in order to ensure that the same problem is solved here.