In today’s world, the nature of holding our property and our methods of communication have changed dramatically. A generation ago, we delivered all of our mail by post, photos were kept in albums, documents in file cabinets, and money on deposit at the local bank. For most of us today, at least some of our property and communications are stored as data on a computer server and accessed via the internet.
Collectively, a person’s digital property and electronic communications are referred to as “digital assets” and the computers that store those assets on their servers are called “custodians.” Access to digital assets is usually governed by a terms-of-service agreement rather than by property law. This creates problems when internet users die or otherwise lose the ability to manage their own digital assets.
The 2017 legislature in Montana adopted the national Revised Uniform Fiduciary Access to Digital Assets Act (“Act”), Sections 72-31-401, MCA, et. seq., to address and govern fiduciary access to digital assets.
A fiduciary is a trusted person with the legal authority to manage another’s property, and the duty to act in that person’s best interest. The Act addresses four common types of fiduciaries:
1. Personal Representatives (formerly or also known as Executors or Administrators) of deceased persons’ estates;
2. Court-appointed guardians or conservators of protected persons estates;
3. Agents appointed under powers of attorney; and
The Act gives internet users the power to plan for the management and disposition of their digital assets in the same way they can make plans for their tangible property. In case of conflicting instructions, the Act provides a three-tiered system of priorities:
1. If the custodian provides an online tool, separate from the general terms of service, that allows the user to name another person to have access to the user’s digital assets or to direct the custodian to delete the user’s digital assets, the Act makes the user’s online instructions legally enforceable.
2. If the custodian does not provide an online planning option, or if the user declines to use the online tool provided, the user may give legally enforceable directions for the disposition of digital assets in a will, trust, power of attorney, or other written record.
3. If the user has not provided any direction, either online or in a traditional estate plan, the terms of service for the user’s account will determine whether a fiduciary may access the user’s digital assets. If the terms of service do not address fiduciary access, the default rules of the Act will apply.
In order to gain access to digital assets, the Act requires a fiduciary to send a request to the custodian, accompanied by a certified copy of the document granting fiduciary authority, such as a letter of appointment, court order or certification of trust. Custodians of digital assets that receive an apparently valid request for access are immune from any liability for acts done in good faith compliance. The Act is an overlay statute designed to work in conjunction with the state existing laws on probate, guardianship, trusts, and powers of attorney.