Digital Access Law

Indiana passed a law on July 1, 2016, found at Indiana Code 32-39 and titled the Revised Uniform Fiduciary Access to Digital Assets Act. The law regulates the rights of personal representatives, trustees, guardians, attorneys-in-fact and other similar fiduciaries.

People that have existing estate planning documents, should have those documents reviewed. Under the new law, companies that store digital information may provide an online tool that allows you to signify how the digital property you have is to be disclosed at your death. If the company does not make the information available or if you do not take advantage of it, certain fall back provisions apply.

You may include provisions in your will, trust or power of attorney to provide directions on who is to have access to your digital records. The Default Rule will prohibit your guardian or personal representative from accessing electronic communications such as e-mails, pictures or text messages without some express authority entered by you into a company’s online tool or in an estate planning document such as a will. A similar rule will apply to trustees and attorneys-in-fact. Be sure to consult with your attorney and review your estate planning documents.

Digital assets are electronic records in which individuals have a right or interest. As the number of digital assets held by Indiana citizens increases, questions arise about the disposition of these assets upon death or incapacity. Digital assets can be online gaming items, photos, digital music, or business documents. Holders of digital assets may not consider the fate of their digital assets once they are no longer able to control those assets and may not have expressly provided for the disposition of their digital assets in the event of their death or incapacity. Even when they do, their instructions may come into conflict with custodians’ terms-of-service agreements.

My colleague, Seth R. Wilson, has worked extensively in the informatics area and is a resource upon which I often rely in answering digital asset questions.

 

Authored by Attorney: Ray Adler, ADLER TESNAR & WHALIN

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