Turner Padget Insights

New South Carolina Law Helps Fiduciaries Access Digital Assets

Posted On Aug 03, 2016

Our online presence can live forever. The internet is packed with Facebook pages, Twitter accounts and neglected blogs that have outlived their makers. With the increasing presence of technology in our lives, we often a leave behind a plethora of digital assets without any guidance to our fiduciaries about what they are and how to access them. Digital assets include our smartphones, tablets, personal computers, social networking site, email accounts, electronic access to our financial and insurance information, online accounts that hold a cash value such as PayPal, url addresses, blogs, and files, pictures, videos stored on the cloud. Often, these digital assets are held by a third-party custodian, and gaining access in the past has been a daunting process if the deceased didn’t have the foresight to ease this process in estate planning.

Fortunately, South Carolina passed legislation this summer that provides a pathway for fiduciaries to access the digital assets of deceased or incapacitated family members. Called the Uniform Fiduciary Access to Digital Assets Act, it sets out a process for personal representatives and others with power of attorney or fiduciary powers to view these accounts. Custodians of accounts must comply with requests to view accounts so long as access has not been eliminated by the account user, federal law, or by a separate terms of service agreement with the user.

What the law allows

The law grants a fiduciary authority to:

• Close Facebook, Twitter and other social media accounts, as well as commercial accounts such as Amazon and PayPal.
• View financial information in checking, savings and investment accounts.
• Read the subject lines of personal email accounts – and the content, if the account owner provides specific authority under a will or Power of Attorney, or if a court gives permission.
• Access financial software and other information on a personal computer, tablet or phone.

What the law doesn’t allow

• The law doesn’t give a fiduciary permission to run roughshod over privacy considerations or estate planning instructions. 
• A fiduciary can’t impersonate the account holder by posting on their Facebook page, blog or Twitter account.
• The person granted access doesn’t own the assets of the account, whether it’s money or photos on a social media site. These remain property of the estate and must comply with whatever instructions were left by the deceased in a will.
• Unless the deceased left permission, the fiduciary can see only a catalog of communications in an email account – not the actual content of messages.
• The fiduciary cannot access accounts owned by an employer.
• The act does not override any terms of agreement already agreed to between the custodian and the user.

Don’t take shortcuts

While some people might be tempted to hack into a deceased relative’s accounts or rummage through a desk for a list of passwords, that’s not a good idea. Under the federal Computer Fraud and Abuse Act, it’s a crime to go into someone’s computer or digital accounts without permission. Throw in a little family drama and control issues, and people just trying to do the right thing by getting quick access to a bank account to pay bills could find themselves with big headaches.

Digital assets need to become a part of the conversation with regard to estate planning. While the new act helps provide some guidance when it comes to access to these assets, it is still a good idea to create an inventory of these digital assets as well has keep a list of usernames and passwords in a safe place where your fiduciary has access upon your death or incapacity.