Executors have a duty to gather all of the assets of the decedent’s estate and prepare an inventory of the assets and debts. In days of old, this meant obtaining paper files that had been in the possession of the deceased. The digital world changed all that. Digital content is generally held, not by the owner of the information, but by a third-party custodian. The custodian of digital assets has an obligation to protect against disclosure of data to unauthorized users. Can an executor really be considered an unauthorized user?
A prior version of a model act, the Uniform Fiduciary Access to Digital Assets Act, gave the fiduciary the same rights over digital assets that she had over tangible assets. That act was met with resistance by custodians of electronic records, each with its own terms-of-service agreements in place with their customers which included provisions regarding who could access digital assets. And custodians were concerned about the costs of responding to multiple requests for digital assets. Continue Reading Accessing and Protecting Digital Assets: Fiduciary Duties in a Digital World