The Eleff Law Group

Providing Access To Your Digital Assets: A Decision Yours To Make

Access To Digital Assets

Many of us are using online accounts to some degree: to manage finances, correspondence, or social interactions, all with the storage of their personal information. Sometimes the information is stored on our own personal devices, such as a laptop or smart phone. Other times, the information may be stored in the cloud or on the social network's own servers. While the concept of digital assets is constantly growing as technology advances, the most common forms of digital assets are our digital photographs, emails, and social media accounts. The inability to access such records could be a huge sentimental loss for a family. For those of us who own a business, the inability to access digital access could have a severe financial impact if a trusted family member or agent cannot open or use work email or other important records in the event of the disability or death of the person holding the passwords.

What Did You Accept, When You Clicked "ACCEPT"?

Almost every online account we've ever opened had a terms of service contract that control the use of those services. It's a sure bet that most of us never bother to read those boring lengthy agreements with terms of use of those online accounts, but they generally provide who has the right to access them - - and typically the terms restrict their use to just you, the person clicking the "accept" button. So if you provide someone else with your username and password, you likely are violating your contract with the service provider. On top of that, you actually could be in breach of federal and/or state privacy laws. Of primary concern however, with digital assets becoming an increasing part of your everyday life, what happens to them in the event of your incapacity or death?

The New Maryland Fiduciary Access To Digital Assets Act To The Rescue

Fortunately for Maryland residents, the newly passed Maryland Fiduciary Access to Digital Assets Act (MFADAA), effective as of October 1, 2016, provides answers. It allows you to grant to your Fiduciaries (either your Personal Representative upon your death, your Trustee under a trust agreement, your Agent through your durable power of attorney, or a court appointed Guardian) the specific right to access your digital assets. The MFADAA is designed to bridge the gap between the terms of service agreements and other privacy laws and the practical aspects of what most users want, or even expect. However, in order to take full advantage of the MFADAA you must specifically grant your Fiduciaries certain powers within your estate planning documents.

Use It Or Lose It

The bottom line? Even with this new Maryland law, if your estate documents are silent regarding digital access, your Fiduciaries may have limited or no authority to access your digital assets. It is important for Maryland residents to review and update their estate plans to take advantage these new rights. Call to action: contact an experienced Maryland estate planning lawyer soon to learn more about how your estate planning documents can be tailored to take advantage of this valuable new legal development.

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