Whether we realize it or not, most of us have substantial amounts of “digital property” or “digital assets” (such as email accounts, social media accounts, blogs, and even investment accounts). Do you know what happens to that property when you pass away? Federal legislation regarding digital property does not yet exist and most states rely on the terms of service or privacy policy of the service that manages the asset to determine what should be done when the owner dies.

In Nevada, as well as 25 other states, legislators have stepped in to create laws that will protect people’s digital assets, giving the decedent’s family the right to access and manage those accounts after the owner has died. Providing even more options is the Fiduciary Access to Digital Assets Act (revised in 2015). This Act allows personal representatives, trustees, or a person appointed by a court complete access to the deceased’s digital assets. Nevada will likely adopt this Act during the 2017 legislative session, which will add significantly to the tools available for accessing and managing a decedent’s digital assets.

Existing Nevada law, NRS 143.188, allows a personal representative to terminate a decedent’s accounts on electronic mail, social networking, messaging, and other similar web-based services. The law specifically does not authorize a representative to cancel financial accounts or to alter contractual obligations the deceased account holder had with the service provider. The law is also silent regarding access to, or use of, personal property that can access the decedent’s digital assets and media, which can be very limiting to a personal representative trying to identify and collect assets of an estate.

With adoption of the Revised Fiduciary Access to Digital Assets Act, the owner of a digital asset will be able to authorize his/her fiduciary to fully manage digital assets. This Act is designed to work in conjunction with Nevada’s existing laws on probate, guardianship, trusts, and powers of attorney. It simply extends a fiduciary’s authority to include digital assets, while maintaining the same fiduciary duties to act for the benefit of the represented person or estate. Under the new Act, authority can be conferred through a power of attorney, allowing the agent to:

1.Have access to any catalogue of electronic communications sent or received;

2.Have access to any other digital asset to which the individual has an interest;

3.Have the right to access any tangible personal property of the individual that is capable of receiving, storing, processing, or sending digital assets;

4.Take any action concerning the assets to the extent of the account holder’s authority, including the termination of the account holder’s account; and

5.Have access to the content of electronic communications sent or received.

It is important to consider both the risks and benefits of authorizing access to your digital assets and the content of your electronic communications. At Kling Law Offices, we would be happy to consult with you regarding your options for addressing digital assets as part of your estate plan.