By: Rachel Selina
As technology evolves, so does the process by which personal representatives deal with property during probate. Michigan’s Fiduciary Access to Digital Assets Act, passed in 2016, addresses the increased use of online accounts. The Act provides both Michigan courts and operators of online platforms (called “digital custodians”) with guidance on how to properly allow access to users’ online accounts.
More specifically, as the Act title implies, the law regulates “digital assets”. Digital assets are “an electronic record in which a user has a right or interest.” This definition is broad and may include online bank accounts, email accounts, social media accounts, or other digitally-stored, proprietary content, etc. However, digital assets do not include digital assets of a party’s employer which are used by the employee in the ordinary course of business.
The Act enumerates which types of individuals can access a party’s digital assets. These individuals are:
1) A fiduciary acting under a will or power of attorney;
2) A personal representative acting for a decedent;
3) A conservator; or
4) A trustee acting under a trust.
The Act applies to these individuals regardless of when the respective document or action was taken to specially designate the individual. For example, the Act will be applied in the same way to a trustee regardless of whether he or she was named trustee before or after the enactment of the Act.
The process for gaining access to a person’s digital assets varies situationally. However, the need to access a person’s digital assets arises most often when a family member or friend passes away. Often people do not think to grant access to their accounts in the event of death nor do they leave behind passwords to do so. In these instances, the Act creates a procedure whereby authorized individuals can request access to digital assets.
The authorized individual will need to provide evidence such as: A death certificate of the account holder, a written request for access, proof that he or she is authorized to access the account, and other evidence the digital custodian requests in accordance with the Act. Once access to digital assets is granted, the legal duties imposed on that fiduciary are the same as those imposed on a fiduciary managing tangible personal property.
The language of the Act provides detailed processes and instructions to access digital assets and to properly act as a fiduciary. However, if you need assistance with administering an estate, Berry Moorman’s Estate Planning, Administration, and Asset Protection Practice Group is available to support you.
Berry Moorman can also assist you with creating or altering an estate plan to ensure that is up-to-date with modern legislation.