Over four years ago, I published an article in my newsletter entitled “Planning For Your Digital Assets.” Within it, I introduced the concept of “digital assets”; property stored on the Internet or in an electronic version rather than in a safety deposit box or filing cabinet. I emphasized that digital assets, like traditional assets, have both monetary and sentimental value and thus should be provided for in wills, trusts and powers of attorney.

I noted that the current legal landscape made planning for one’s digital assets uncertain at best, since a fiduciary trying to administer a decedent’s digital assets would typically be denied access by outdated federal laws and nonnegotiable terms-of-service agreements. I concluded with the hope that Missouri would follow the lead of other states and pass a law carving out a fiduciary exception to those federal laws and terms-of-service agreements. Thankfully, Missouri in 2018 indeed passed just such a law: the Missouri Fiduciary Access to Digital Assets Act (MFADAA). This article summarizes the Act’s main provisions and concludes with recommendations as to how you should update your estate plan to take advantage of them.

MFADAA

The purpose of the MFADAA is simple: to give fiduciaries “the legal authority to manage digital assets and electronic communications in the same way they manage tangible assets and financial accounts, to the extent possible.”[1] The manner in which it accomplishes this purpose, however, is far more complex.

The MFADAA uses an opt-in approach to determine whether a fiduciary can access a decedent’s digital assets. It sets forth a hierarchy of methods, in descending order of authority:

• Online tools. Under MFADAA, custodians (e.g., Facebook, Google, Apple, and Yahoo) can create “online tools”—agreements distinct from their terms of service agreements—through which users can ostensibly grant their fiduciaries access to the digital assets stored on each individual platform.
  • The most important thing to remember about online tools is that they render all other instructions irrelevant, including directives disposing of your digital assets in your will, trust, or power of attorney.
• Will, trust, or power of attorney. The MFADAA states that a user also may consent to the disclosure of their digital assets by simply granting their fiduciary blanket access in their will, trust, or power of attorney.
  • The advantage of such a grant of consent is twofold: 1) it can cover all of one’s digital assets in one fell swoop; and 2) more often than not, it provides more access than the tech companies’ online tools are willing to grant.
• Terms of service. If the user has not provided direction, the custodian’s terms-of-service apply. Recall that most terms-of-service agreements will entirely bar a fiduciary from accessing a decedent’s digital assets.

RECOMMENDATIONS

At first glance, it might seem that the online tool option is the most convenient. But the protections which most online tools afford—especially those offered by the largest custodians—are sparse at best and illusory at worst. Consider Facebook’s online tool, Facebook Legacy Contact. It allows you to “choose someone to look after your account after you pass away”[2] but restricts them to a mere caretaker role; they may “respond to new friend requests”[3] and “update your profile picture”[4] but they may not, for example, view your messages.[5] Because MFADAA states that the directive of an online tool trumps that of a will, trust, or power of attorney, an individual who uses the online tool actually would have less authority than if a will, trust or power of attorney was used granting consent under MFADAA.

Facebook’s legacy contact feature illustrates how easily online tools can lay a trap for the unwary.  It is an example of why I recommend against relying on the online tools of big tech companies.  If you want to maximize the authority of your fiduciary over your digital assets, I discourage you from using online tools and instead encourage you to contact us at your convenience to discuss creating a will, trust or power of attorney with an express grant of consent regarding your digital assets. 

[1] National Conference of Commissioners on Uniform State Laws, Revised Uniform Fiduciary Access to Digital Assets Act, p. 1 (March 8, 2016).

[2] Facebook, Memorialization Settings, in General Account Settings.

[3] Id.

[4] Id.

[5] Id.