A deceased person’s digital assets would be governed in the same manner as physical records, under legislation being considered in Delaware.
House Bill 345, the Fiduciary Access to Digital Assets and Digital Accounts Act, gives fiduciaries the power to manage a decedent’s online resources such as email and cloud storage as part of an estate. The measure addresses a growing problem for families frustrated that a deceased loved one’s electronic materials are unavailable due to strict agreements that restrict access to one user.
Sponsored by Rep. Darryl Scott, D-Dover, HB 345 passed on a 39-1 vote in the Delaware House and 21-0 in the Senate. The bill was co-sponsored by Sen. Bryan Townsend, D-Newark, and awaits a decision by Gov. Jack Markell.
In an interview with Government Technology, Scott explained that the issue came to light when a constituent wasn’t able to obtain access to her deceased father’s email account. That led to Scott authoring HB 396 in 2012. That measure was narrowly drafted, requiring an executor to go through the probate process and obtain court permission before accessing a decedent’s digital accounts. Although the bill got out of committee, it was never taken up by the Delaware House of Representatives.
HB 345, however, takes a more comprehensive view of the digital assets issue by expressly authorizing the four basic types of fiduciaries – executor, trustee, guardians and agents – to have a level of control over online accounts of a deceased or incapacitated person.
For example, if an estate or trust is silent with respect to what happens with digital assets, then the trustee or executor of that estate would be given a right to access and manage those accounts just like they would any other documentation.
A guardian would need permission through the court to have access to a decedent’s online properties, while an agent would have to have their access clearly delineated as a part of the power of attorney process. In regard to an incapacitated person, a doctor would have to provide documentation as the status of the individual for an agent to access that person’s digital assets.
If the measure becomes law, technology companies such as Google, Microsoft and all providers of online storage and email would fall under HB 345’s purview for account holders living in Delaware.
While the voting record on HB 345 shows a high level of support on the digital assets issue, the process of securing backing for the measure wasn’t as easy as it looks.
Scott noted that the tech industry was concerned that an individual might gain access to private material in a digital account that the decedent might not have wanted exposed. He added that industry wanted Delaware to mimic a law in Rhode Island that required a court order each time a fiduciary wanted access to a deceased person’s email or other online service.
Scott disagreed, and felt states had a right to define lawful access to those electronic assets.
“We didn’t think there was a legitimate argument to be made about privacy,” Scott said. “From our perspective, if an individual was silent in their will, their executor would get access to it. If an individual designated on a website that they wanted the account deleted upon their death that would be honored. If the will was specific to say you get access to everything but my Google account, for example, that was to be respected.”
As of press time on July 11, Gov. Markell had yet to sign HB 345, but Scott expressed confidence that it would happen soon, and said he’s planning to contact Markell’s staff to schedule a signing ceremony for the bill.
“I don’t anticipate there’s any issues at this point … it’s been vetted very well,” Scott said.
Brian Heaton was a writer for Government Technology magazine from 2011 to mid-2015.