New legislation addresses inheritance of digital assets

We spend hours on the internet, living our lives through social media accounts, paying bills, writing emails and handling our banking. But what happens to those assets when you die? Who’s in charge of your digital afterlife?

“I think that generation that’s my age and certainly senior citizens who are starting to acquire more of these assets, never thought to ask these questions because we were always in a paper society,” Assemblyman Lou Greenwald said.

But that’s more of an endangered species these days. A new law, created by Greenwald, helps people control access to their so-called digital assets upon death, much as they would in the traditional sense for physical items like real estate or stock.

“Right now you have to contact the companies that you work with and affirmatively ask them to share the information. This would change that to allow you to work with an estate planner to identify in your will that information is your property,” said Greenwald.

So your Facebook or checking account will get the same protection as tangible property. And the law extends power to a fiduciary or executor of an estate to manage those digital assets.

The law makes New Jersey the twenty-fourth state to enact what’s called the Uniform Fiduciary Access to Digital Assets Act. It’s a mouthful, but it means those walls created by privacy rights can be navigated. Think of it as the next evolution of the living will for your digital property.

“I think it was well intended, but it’s execution was sub-optimal,” said Internet law expert Jonathan Bick.

Bick sees the legislation through a different lens. He says assets of the internet come in three varieties associated with their location: those in the possession of the person, those created elsewhere and those with no location.

“If you have an email, it may be located in your computer, so if a fiduciary or trustee takes over the computer they’ll have complete control over that asset. But some assets such as emails are located on third-party machines. So, for example, if you had Gmail, your e-mail is not located in your computer, rather a server owned by Gmail,” he elaborated.

Bick anticipates some legal difficulties. He says the new law puts constraints on traditional systems. But as digital life remains new territory, he welcomes any step to help protect digital death.

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