Planning for Digital Assets
One of the most overlooked assets in your estate plan is digital assets. “Digital assets” mean an electronic record in which a natural person has a right or interest. In addition to social media accounts and emails, these assets could also include important tax and/or medical records which you elected to store online and are password protected. Although numerous states have been introducing digital asset legislation since 2007, Nevada does not currently address the issue. However, that is about to change shortly. AB 239 was recently passed by the Nevada Assembly and is expected to be heard shortly by the Senate Judiciary committee. The bill seeks to enact The Revised Uniform Fiduciary Access to Digital Assets Act.
This legislation would give: (1) certain fiduciaries and other designated persons the legal authority to manage the digital assets and electronic communications of deceased or incapacitated persons; and (2) custodians of digital assets and electronic communications the legal authority to deal with a fiduciary or designated recipient of a person holding an account with the custodian.
In the event you are no longer able to manage your finances, you may designate another (referred to as the “agent”) in a Durable Power of Attorney for Financial Decisions (the “DPOA“). The DPOA enables the agent to manage your assets in the event of your incapacity. However, what if the agent couldn’t find passwords to your email account, online accounts or other passwords instrumental to gain access to your digital assets? If the DPOA fails to address these issues, your family member would likely encounter extreme difficulty in obtaining access.
AB 329 provides that to the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives the custodian a written request for disclosure in physical or electronic form along with a copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal. In other words, if your DPOA doesn’t specifically grant this authority, it won’t help. However, the answer is simple – the DPOA is an incredibly important part of your estate plan and it is inexpensive to prepare.
