By: Michael R. Demerath, Attorney at Hager, Dewick & Zuengler, S.C.
In the July 13, 2015 issue of The Business News I wrote about the frustrations which Personal Representatives, agents under a Power of Attorney, guardians and Trustees were facing when trying to access online accounts and records of a deceased person. I also opined that in order to properly deal with these issues, Wisconsin should adopt a version of the Uniform Fiduciary Access to Digital Assets Act, which many other states were enacting. I am happy to say that on March 30, 2016, Wisconsin enacted the Wisconsin New Digital Property Act (the “Act”).
Wisconsin’s legislature used the Uniform Act as a base and modified it to address items and terms specific to Wisconsin’s existing laws. The Act governs disclosure of digital property to Personal Representatives, agents under a Power of Attorney, guardians and Trustees (“fiduciaries”). These people acting in fiduciary capacities can now receive certain information related to digital accounts/property, as directed by the individual, even if the terms of service say something to the contrary. As discussed below, the Act is unique as it takes a tiered priority approach and requires the individual to “opt-in” in order to allow the fiduciary to receive the actual content of the communications or other digital property.
As mentioned in my prior article, some technology companies recognized the growing problem faced by fiduciaries long before the legislatures, and they developed their own options to address digital property issues. Google developed the “Inactive Account Manager” which notifies a previously designated contact of your inactivity for a pre-selected length of time and gives that contact access to download any data you previously approved (i.e. email, Picasa, Web Albums, YouTube videos, Google docs). Facebook developed “Legacy Contacts” which allows you to designate who will control your memorialized account, write posts, handle friend requests, update photos and download items.
Wisconsin lawmakers recognized these actions previously taken by certain technology companies, and that these “online tools” could conflict with the language or appointments in a Last Will and Testament, Power of Attorney or Trust. Therefore, the Act utilizes a tiered priority approach to clarify which mechanism controls. If a person completes an online tool, such as those mentioned above, and that online tool allows that person to modify or delete a direction at all times, the direction set forth in the online tool will control over any contrary direction in a Last Will and Testament, POA or Trust. If no online tool is used, then terms related to the allowance or prohibition of disclosure of digital property specifically set forth the Last Will and Testament, POA or Trust will control. Given this priority issue, it is important to discuss with your attorney the pros and cons of the use of these online tools as a part of your overall estate plan.
While the Act does automatically provide the fiduciary some access to digital information simply by being named in the Last Will and Testament, POA or Trust, the information is limited to a “catalogue of electronic communications”. A “catalogue of electronic communications” includes information that identifies each person with whom the individual had communication, the time and date of the communication and the electronic address of the person. As you can tell, while this information will be helpful, it does not provide all the information that a fiduciary would desire to obtain because the actual substance or “content of the electronic communication” is not provided. In order to require a third party, such as Google, Facebook, Hotmail, Yahoo, etc., to provide the actual content of the email, chat or other electronic communication, the Last Will and Testament, POA or Trust must contain the individual’s express consent to such disclosure. Therefore, in order to allow your fiduciary see the whole picture and for him or her to act appropriately, the inclusion of additional “opt-in” language related to content in a Last Will and Testament, POA or Trust should also be discussed with your estate planning attorney.
Wisconsin’s new Digital Property Act is a step in the right direction to allow those that would act as your fiduciaries the true access they need in order to properly, timely and efficiently carry out their duties. Now may be a perfect time to review your current estate planning documents, as updates and revisions may need to be made in order to avail your fiduciaries of the options offered by this new Act. Doing so will help bring your estate plan into the digital age and save headaches for your fiduciaries later.