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Fiduciary Access to Digital Assets

By Swogger Bruce & Millar, Mar 6 2017 04:23PM

While the vast majority of us, (either willingly or begrudgingly) accept that as a society we are becoming increasingly dependent upon digital platforms such as google and yahoo for email, news, research tools and more; Facebook, Twitter, etc. for social media, marketing, and communication; and online banking for bill pay, reviewing statements, etc., we probably do not give much thought to who should, or will, have access to such accounts and assets upon our death. As we develop more of an online presence, not just through social media but by paying bills, receiving bank statements, retirement account information, storing and retrieving family photos, utilizing email correspondence, etc., it is important to make certain that these assets can be accessed and retrieved upon our death.

In addition to federal law, Michigan has two statutes, MCL 750.540 (prohibits making unauthorized connection with any electronic medium of communication) and MCL 752.795 (prohibits accessing a computer, computer system, or computer network without authorization or in a way that exceeds authorization) which render it not only difficult, but a crime, for your loved ones to access your online accounts upon your disability, incapacity or death. In light of both state and federal law, it is important that your estate planning documents such as your durable power of attorney, wills, and trusts, include provisions which specifically authorize your agent/fiduciary to access, read, copy, retrieve, etc., any information or documentation stored on these digital platforms. As with the technology itself, this area of law is fluid and constantly evolving. Therefore, it is recommended that you meet with an estate planning professional every couple of years or so to review your existing plan and determine what amendments or changes are necessary.

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