Attorney Howard H. Collens is currently working to get a new law enacted in Michigan to allow fiduciary access to digital assets.

1. UPDATE ON ACCESS TO DIGITAL
ASSETS:
ARE WE THERE YET?
PRESENTED BY:
HOWARD COLLENS
GALLOWAY AND COLLENS, PLLC
MICHAEL LICHTERMAN
BOLHOUSE, BAAR & HOFSTEE, P.C.

2. Controlling and Maintaining
Online Access

3. Categories of Digital Assets
 Personal
 Stored on computers, smart phones, or other devices, or are
uploaded to a Web site or digital service
 Photographs, videos, emails, and music playlist
 Social Media
 May involve photos, videos and other electronic files stored on
these accounts
 Financial
 Online banking, online bill-paying activities
 Online accounts with no connection to a brick-and-mortar
establishment (Amazon, eBay, PayPal and E*TRADE, BitCoin)
 Business
 Varies by types of business and extent of its computer or Internet
associated activities, which may include blogs, domain names,
credit card and financial data

4. Poll Question:
 Do you have a personal Facebook page?
A. Yes
B. No

5. Poll Question:
 Do you have a law firm Facebook page?
A. Yes
B. No

6. Poll Question:
 Do you have a LinkedIn account?
A. Yes
B. No

7. Poll Question:
 Do you have an online picture storage
account?
A. Yes
B. No

8. Value of Digital Assets
 “Digital Assets” may have sentimental and
monetary value
 2013 survey conducted by McAfee - average
value on digital assets of $35,000
 Both personal and business assets – actual
monetary value (i.e. domain names, blogs, etc.)

9. Access to Digital Assets - Provide
Instructions:
 If you want a site to continue, for example if you have a
website or blog, you need to leave instructions for keeping
it up or having someone take it over and continue it.
 If a site is currently producing or could produce revenue (e-
books, photography, videos, blogs), make sure your
successor knows this.
 If there are things on your computer or hard drive that you
want to pass on (scanned family photos, ancestry research,
a book you have been writing), put them in a “Do Not
Delete” folder and include it on your inventory list.
Excerpt from: Estate Planning for Digital Assets and Social Media

10. Terms of Service
 Facebook’s Statement of Rights and
Responsibilities
 Yahoo Terms of Service
 LinkedIn User Agreement
 Google Terms of Service
 Ello

11. Facebook
Memorialize the account
“We will memorialize the Facebook account of a deceased person when
we receive a valid request. We try to prevent references to memorialized
accounts from appearing on Facebook in ways that may be upsetting to
the person's friends and family, and we also take measures to protect the
privacy of the deceased person by securing the account.
Please keep in mind that we cannot provide login information for a
memorialized account. It is always a violation of our policies to log into
another person's account.”
 Memorial accounts can never be logged into again
From: Facebook

12. The State of the Law Is In Flux
 In matters of incapacity and post death, the Probate laws
(and in certain cases in Michigan, the Mental Health Code)
will control who can access digital assets
 Digital companies have created terms of service agreement
to begin to address the management of digital property
after incapacity and death
 Only eight states have passed legislation regarding access
to digital assets (Delaware, Oklahoma, Idaho, Rhode
Island, Indiana, Virginia, Nevada and Connecticut, who was
the first in 2005)

13. Federal Statues and Michigan
Statues
 Stored Communications Act, 18 USC 2701,
(also known as the Electronic Communications
Privacy Act (ECPA))
 Computer Fraud and Abuse Act, 18 USC 1030
 Michigan law, in MCL 750.540

14. Michigan and
FADA
 HB 4072 is the latest effort in Michigan
 Michigan FADA should improve on UFADAA by adopting
broader definition of Fiduciary to include:
 Guardian of the Person/Guardian of the Estate
 Special Fiduciaries

15.  In 2011, the Uniform Law Commission established
the Fiduciary Access to Digital Assets Committee
to draft a free-standing act that will vest fiduciaries
with the authority to manage and distribute digital
assets, copy or delete digital assets, and access
digital assets
 The Committee has met since that time and in July
2014 the ULC adopted a final version of a Uniform
Fiduciary Access to Digital Assets Act (UFADAA)

16.  The UFADAA:
 Gives Account Holder control over whether
digital assets should be preserved,
distributed or destroyed
 Authorizes access to digital assets that
would not violate the Federal Stored
Communications Act, 18 USC 2701 and
Computer Fraud and Abuse Act, 18 USC
1030

17.  The UFADAA:
 If widely adopted, provides consistency
throughout the country
 Currently, there is a hodge-podge
approach
 Authorizes access by:
 Agent under Power of Attorney
 Conservator
 Personal Representative
 Trustee

18.  The UFADAA:
 Requires that fiduciaries provide
proof of authority in the form of a
certified document
 Gives Custodians of digital assets
immunity for relying on a fiduciary’s
apparent authority
 Addresses Impairment of Contract
and Public Policy

19.  Under UFADAA:
 Personal Representative/Trustee are “opt-out”
 May Access Digital Assets Unless
Otherwise Provided in Writing
 Conservator is “opt-in”
 May Access Digital Assets Only With
Authority from Court
 Agent under Power of Attorney is mixed
 Access to Catalogue of Electronic
Communications is “opt-out”, Content is
“opt-in”

20. Privacy Expectation Afterlife and
Choices Act
 The Privacy Expectation Afterlife and Choices
Act (PEAC Act)
 Proposed by NetChoice
 Addresses post-death access only
 Requires probate in every instance

21. A Robust, Effective Approach for
Michigan
 Drafted by Updating Michigan Law Committee
of the Probate Council
 Final version of UFADAA as its basis
 A practical, Michigan specific law developed
by members of the Michigan Bar.
 Endorsed by Probate and Estate Planning
Section, the Elder Law and Disability Rights
Section and the Michigan Probate Judges
Association

22. Incorporating Digital Estate Planning
into Your Practice
 To help the process, a questionnaire for the client to
list all digital assets and the value of those assets
 Discuss if any of the assets have financial value
 Keep record of all passwords and profiles
 There are websites specifically designed to
release account information after death to
designated beneficiaries (PasswordBox.com or
AssetLock.net)
 Suggest clients protect significant data with strong
encryption

23. Inventory Checklist
 Make sure to include everything from the computer,
other devices, and the “virtual world” (i.e. cloud,
internet)
 All email accounts
 All meaningful social websites
 Financial and commerce accounts
 Make a simple spreadsheet with passwords to access
assets
Digital Assets Inventory
Asset Access Wishes
Name Contents Location Username Password Instructions Recipient

24. Who is in Charge?
 After an inventory of digital assets is created, decide
who to give the access to in the event of death or
disability.
 Make sure to indicate whether the digital executor
should archive content, share content with others,
or delete content (and/or secure privacy of some
content which may be harmful).
 Make sure to include any special instructions (Think
sensitive and/or embarrassing content).

25. Access to Digital Assets
 Create a document and note if the property is personal
or has monetary value
Examples of note
Excerpt from: The Trust Advisor

26. Where Should The Client
Note His or Her Intent?
 Powers of Attorney
 Last Will and Testament
 Revocable Living Trust
 General Assignment

27. Using Tools that Service Providers
Offer
 Facebook Legacy Contact
 Google Inactive Account Manager

29. Howard H. Collens
Galloway and Collens, PLLC
26075 Woodward Ave, Suite 200
Huntington Woods, Michigan 48070
248.545.2500
GallowayCollens.com
Howard@GallowayCollens.com
Twitter: @howardcollens
Michael Lichterman
Bolhouse, Baar & Hofstee, P.C.
Grandville State Bank Building
3996 Chicago Drive SW
Grandville, Michigan 49418
616.531.7711
BolhouseLaw.com
MikeL@BolhouseLaw.com