Notes From Annapolis: Death, Disability, and Digital Assets

In the aftermath of the 2015 session of the Maryland General Assembly, we naturally focus our attention on bills passed by the Assembly and signed by the Governor.  But as we sift through the accomplishments of our elected officials, it is always important to consider the bills that did not pass and the problems that may ensue without adjustment to our Code.

One such bill that did not receive a favorable review this year is the Maryland Fiduciary Access to Digital Assets Act (SB 429/HB 531).  If enacted, this bill would vest fiduciaries with the authority to access, control, or copy digital assets and accounts.  Typically such accounts – Facebook, e-mails, tweets and other on-line accounts – are governed by the contract created by the user of the account and the provider of the service without any reference to fiduciaries. Under the bill, fiduciary means a personal representative, guardian, agent acting pursuant to a power of attorney, trustee or advisor.    In essence, the bill would enable a fiduciary to “step into the shoes” of the account holder.  The fiduciary could take action that the account holder can take and would be bound by the same limitations of the account holder.

While opponents of this bill cited concerns about the privacy of the account holder, as we collectively become more and more engaged in electronic communications and transactions, it is becoming increasingly apparent that those who are entrusted with managing our affairs – the fiduciaries we count on to perform tasks on our behalf – can encounter significant obstacles in dealing with on line transactions.  For example, in estate administration, a personal representative is charged with the responsibility of paying the bills of the decedent from the assets of the estate.  If the decedent managed his or her accounts on line and the personal representative cannot access this information, what would have been a simple transaction can become very complicated.  Similarly, in instances when a person becomes disabled and has had the foresight to appoint an agent to manage his or her affairs, the agent could be impeded from taking reasonable actions to perform routine tasks for the principal.

Several other states have enacted statutes to address this issue, and Maryland will likely do so in the future.  Meanwhile, in the estate planning process, it is now essential to keep track of on line accounts and passwords as well as to review agreements with providers of electronic accounts.  At a minimum, attention to these details will assist the fiduciary who is acting on behalf of another.

An experienced attorney will be aware of these estate planning issues.  She will be able to advise clients to note the details of how to access their digital assets so their agent can proceed easily in managing their estate.  Please visit the estate planning section of our website for more information.