9135 / What is a digital fiduciary and how can a digital fiduciary be useful in estate planning for digital assets?

A comprehensive estate plan covering digital assets should provide for the designation and authorization of a digital fiduciary, who has the right to access and manage digital assets and accounts on behalf of the decedent. It may be the same person named as executor of the estate or someone else authorized specifically to manage the estate’s digital assets. Choosing a person familiar with modern technology can create a more efficient administration.A digital fiduciary, once chosen, must be granted sufficient legal authorization to carry out necessary functions of estate administration, including accessing and managing the user’s digital assets after the user dies.

The power of attorney, will, trust, or other legal instrument document appointing the digital fiduciary should grant specific authority to access and inspect any (1) online accounts (including electronic communications and the content of electronic communications), (2) electronic devices (including computers, hard drives, and smartphones), and (3) other tangible digital storage media. In states that have not adopted the Uniform Act, these authorizations may provide an alternative when state laws do not explicitly provide such authority to a fiduciary.

The authorizing document should also be cognizant of the provisions of the Computer Fraud and Abuse Act¹ and the Stored Communications Act² to avoid the fiduciary’s liability and ensure the fiduciary’s access to digital assets.