are transmitted by wire. Notable exceptions to this definition are oral communications such as voicemail, and electronic funds transfer information such as bank wire transfers.
“ Custodians” 6 are people responsible for the transmission, maintenance, and storage of the digital assets of another person. They generally will be employees or owners of whatever platform your digital assets are located.
“ Fiduciary” 7 is used as an overarching term to refer to personal representatives, conservators, agents, trustees, and each of their successors. Fiduciaries have a special legal duty that creates a set of obligations that the fiduciary owes to whomever or whatever is the subject of the fiduciary relationship. The Act is fairly comprehensive in covering the distinctions among the different types of fiduciaries, but ensures that fiduciaries have the same duties imposed on them with regard to digital assets, as they have always had with physical assets. 8
The second article of the Act encourages custodians to host online tools, 9 which allow users to designate a recipient to which the custodian will disclose some,
6 Ga. Code Ann. § 53-13- 2( 7)( 2018) 7 Ga. Code Ann. § 53-13- 2( 13)( 2018) 8 Ga. Code Ann. § 53-13- 30( a)( 2018) 9 Ga. Code Ann. § 53-13- 2( 15)( 2018) all, or none of the user’ s digital assets, including the contents of electronic communications. 10 This process can be likened to the beneficiary designation on a life insurance policy or a TOD account. 11 Importantly, if the online tool has the ability to be modified at any time, it will override any contradicting directions in a will, trust, or power of attorney. 12 In the absence of a provided online tool, or if the user failed to utilize one, any of the instruments in the preceding sentence may be used to provide the same direction. 13
For many people living in the twenty-first century, digital assets have taken the place of more traditional sources of income. If you happen to run a successful blog, YouTube channel, or other content creating outlet, you need to start thinking about how you want that legacy to be passed on. This new act provides your personal representative with the authority to sift through your digital assets and distribute them according to your estate plan. In the absence of a direction to the contrary by a probate court, the
10 Ga. Code Ann. § 53-13- 10( a)( 2018) 11 A TOD or“ Transfer on Death” account is one which allows a person to designate a beneficiary, or beneficiaries, to which the contents of the account will pass outside of probate immediately upon the person’ s death. 12 Ga. Code Ann. § 53-13- 10( a)( 2018) 13 Ga. Code Ann. § 53-13- 10( b)( 2018)
Act instructs custodians to disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications and all digital assets other than the content of electronic communications. 14 When passing on revenue producing digital assets, it may be important for the content to be accessible and that means proper planning, some of which may be specified in trust or will instruments. 15
To delve further into the intricacies of the Act would exceed the scope of this article. The sections not covered in the preceding paragraphs are primarily concerned with technical details regarding fiduciaries entrusted with digital assets, their duties, as well as the processes they must go through to remain in compliance with the Act.
Just because the Act has fail-safe provisions to ensure that digital assets are not left inaccessible, does not mean that they should be ignored in an estate plan. The Georgia Legislature has implemented this useful act so that you won’ t stop thinking about tomorrow. Take the time to plan who should be responsible for your digital legacy because yesterday’ s gone, and we may soon see the day where digital assets are among the most important assets that one owns.
14 Ga. Code Ann. § 53-13-14( 2018) 15 Ga. Code Ann. § 53-13-18( 2018)
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