Have you ever wondered what will become of your email accounts, social media accounts, or cryptocurrency holdings upon your incapacity or death? Missouri recently granted fiduciaries (such as trustees, executors, etc.) rights to access online accounts by enacting the “Missouri Fiduciary Access to Digital Assets Act” (the “Act”) on June 1, 2018.
The Act says that if a user electronically provides directions to the custodian of an online account for disclosure of account information, those directions will trump what the user provides in his or her power of attorney, will, or trust. If the user does not or cannot specify what will happen to an online account electronically, then the directions provided in a power of attorney, will, or trust, will control.
Many online accounts require a user to approve a terms-of-service agreement. Some terms-of-service agreements prevent the custodian from releasing account information to third parties. However, the Act provides that a terms-of-service agreement will not override the directions provided electronically or in estate planning documents if it does not require the user to separately agree to permit or refuse disclosure of account information to third parties.
When a fiduciary is granted access to an online account, the custodian has discretion to provide full or partial access to the account. The custodian cannot disclose digital assets that have been deleted by the user.
A durable power of attorney that contains a general provision granting the attorney in fact a general power over digital assets will not allow the attorney in fact to access the content of electronic communications. The durable power of attorney must explicitly grant the attorney in fact the authority to access the content of electronic communications.