BOZEMAN — In this digital age, the ways people store copies of their electronic communications vary widely. Some store email, text messages, instant messages and other communications only digitally, while others keep paper copies of some, but probably not all, of their electronic communications.
A key estate planning question is: Who has access to those electronic communications if the person becomes incapacitated or dies? According to Montana State University Extension educators and a University of Montana law professor, a 2017 Montana law answers this question.
Many people use the services of private companies to store electronic communications and other documents on their servers. But when a user dies or loses the ability to manage their electronic communications, the user’s fiduciaries may be denied access to those documents by these “custodian” companies. A fiduciary may be the user’s personal representative of the estate, the trustee of a trust or the agent named in a financial power of attorney.
“These fiduciaries may need access to electronic communications to locate the user’s assets and liabilities, to determine contractual obligations, and to locate the addresses of family members and beneficiaries of their estates,” said Marsha Goetting, MSU Extension family economics specialist.
The Montana Legislature passed the Revised Uniform Fiduciary Access to Digital Assets Act in 2017 in response to this need. The law allows Montanans to give trusted individuals access to their digital assets, including emails and other electronic communications.
“Although fiduciaries may be able to access your paper communications, they cannot access your electronic communications unless you include consent provisions in your will, trust or financial power of attorney,” said Wendy Wedum, MSU Extension Pondera County agent. “You can also consent online with each of your custodians. Most custodians authorize ‘online tools’ which permit you to provide direction for the disclosure of digital assets to a third person. Such online tools are distinct from the basic agreement between you and the custodian, which are sometimes called ‘terms-of-use’ agreements or ‘click-wrap’ agreements.”
According to E. Edwin Eck, professor emeritus of the Alexander Blewett III School of Law at the University of Montana, consent provisions in a will, trust or financial power of attorney are preferred over the online tool of a custodian for several reasons.
“First, typically custodians do not allow you to use an online tool to designate contingent fiduciaries,” Eck said. “What happens if that person is unable to serve? Contrast this with your will, where most people name contingent personal representatives if a named personal representative is unable to serve. Similarly, contingent fiduciaries are easily designated in trusts and financial powers of attorney.”
Second, most of us use many custodians without realizing it, he added. For example, a person may have Facebook, Google, LinkedIn, Twitter and Pinterest accounts. They would need to read and understand the terms of agreement for each online tool with each custodian. However, if this person uses a will or a trust as their primary estate planning document, they would only have to designate the custodians in their will or trust.
“Not only does a designated custodian in a single document save time, it assures the same person will have access to all of your accounts,” Goetting said.
If your estate planning documents have not been updated since before 2017, Goetting, Wedum and Eck suggest reviewing them and adding information about access to electronic communications. Also, individuals should make a list identifying accounts and passwords, and alert their fiduciaries how to find the information. Such a list should be kept in a safe place.
More information about the Montana digital assets law can be found at https://issuu.com/statebarmt/docs/november_2017montana_lawyer_col.
- MSU News Service