April 1, 2014 Ossian Law P.C. IT Law Alert
Legislating the Succession of Digital Assets: A recent McAfee survey finds that the average person owns $35,000 in “digital assets” in social media and other online accounts. Bills were recently introduced in the Michigan legislature to address the succession of digital assets owned by deceased or incapacitated persons. If passed, Michigan would join Connecticut, Idaho, Indiana, Nevada, North Carolina, Oklahoma and Rhode Island as having laws giving fiduciaries administrative rights over digital assets.
These laws don’t address every potential situation and are not uniform in the rights granted to fiduciaries. Michigan’s proposed law would allow an interested person to petition a court to “limit or eliminate” the fiduciary’s right over a digital asset, however, but doesn’t include any standard by which such petition should be considered. State law is also subject to the digital custodian’s terms of service. Facebook, for instance, doesn’t allow a third party, even a fiduciary, to log into an account, but will “memorialize” an account upon receiving a “proper request” after the account holder’s death.
Without the fiduciary’s knowledge of the existence of a deceased or incapacitated person’s digital assets, they could end up falling through the cracks. On the flip side, as a digital custodian of other’s digital assets, how will you handle a fiduciary’s attempt to administer the assets under a state law?
Access Michigan House bills 5366 here. The companion bills 5367 through 5470 are also available at that site.
Contact us at Ossian Law P.C. regarding social media law or any other information technology law question.