law.” Google only allows authorized
representatives to access others’
accounts “in rare cases.” Amazon
does not appear to have a comprehensive policy on account use, but
the company’s licensing agreement
for Amazon Kindle specifies that an
individual cannot “sell, rent, lease,
distribute, broadcast, sublicense, or
otherwise assign any rights to the
Digital Content or any portion of
it to any third party.”
While Georgia does not currently
have “digital asset” legislation, the
issue is on lawmakers’ radar. In the
2015-2016 session, the General Assembly introduced HB 274, which
would have provided for access to
a decedent’s digital accounts3. The
bill would have authorized a personal representative to “take control of, handle, conduct, continue,
distribute, or terminate any digital
account of the decedent,” as well
as requiring providers of digital
account services to grant access to
accounts within 30 days of receiving letters of testamentary or letters of administration. This kind
of legislation could be helpful for
Georgians, but it may be a while
before the laws are enacted. HB
274 stalled out on the house floor.
In the meantime, what can be done
3 “Digital Account”: any account of
the decedent on any social networking
Internet website, web blog Internet website,
microblog service Internet website, short
message service Internet website, electronic
mail service Internet website, financial
account Internet website, or any similar
electronic services or records, together with
any words, characters, codes, or contractual
rights necessary to access such digital
assets and any text, images, multimedia
information, or other personal property
stored by or through such digital account.”
(Georgia House Bill 274)
to protect your digital assets? Be
proactive. Consider including language in your will that gives your
executor “all of the rights, powers and privileges that I have with
respect to my digital assets.” You
should also include a short, comprehensive definition of “digital
assets.” This type of language can
also be used in your power of attorney document, if you wish for
someone else to be able to manage
your digital assets during your lifetime. However, when granting this
authority, especially as it relates to
power of attorney, it is important
to keep in mind that entities are not
required to comply with your request if it goes against their user
agreements and there is no state
legislation forcing the issue. For
example, many banks do not allow
anyone other than the individual
account holder to use online banking; having power of attorney will
not necessarily change the bank’s
policy on this issue.
Having the digital asset language
in your estate planning documents
allows you to take advantage of service provider policies in which a
person can manage a decedent’s
account with prior consent. With
Facebook, users might also be able
to designate other approved users
in the account settings, or through
contacting the company. Including digital asset language in estate
planning will also enable you to
take advantage of emerging laws
and changing company policies,
allowing greater access for estate
representatives and fiduciaries.
There are still significant gaps,
however, when dealing with com-
panies such as Google, which are
only allowing account access in
“rare cases.” To work around this
roadblock, you may want to simply
leave a list of account user names
and passwords for your executor, or
some other trusted individual (other
than power of attorney). But, do
note that online platforms require
frequent password updates – which
may be difficult to keep up with.
Also, there is always an increased
security risk when you share IDs
and passwords with other people.
Protecting your digital assets is a
challenge in this rapidly changing
technology landscape, but as more
people recognize the need for such
protection, we can expect improvements in policies and laws. Companies are becoming more open
to recognizing the rights of estate
representatives, and legislatures are
considering laws designed to protect users. Hopefully, the state of
Georgia will soon have procedures
in place for protecting digital assets
after death.■
Make the most of your
Atlanta Bar membership by
updating your online profile
at atlantabar.org.
The Official News Publication of the Atlanta Bar Association THE ATLANTA LAWYER
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