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Fiduciaries and digital assets

Colorado is one of a number of states that have enacted a Fiduciary Access to Digital Assets Act. This allows a person who is the fiduciary for the estate to have some access to the person's digital records and accounts. This is a complicated area that is not yet fully covered legally although this act goes some way toward addressing many issues.

A fiduciary was traditionally allowed to access all of a dead person's legal and personal items, and the fiduciary was obligated to act in that person's best interest. However, the lives of many people are now digital. A person may not have permission in some areas to access a person's computer, and some website terms of service prohibit use of a person's account by another user even with that person's permission.

The act has four provisions. First, if the terms of service allow a person to be named to manage the account after a person's death and someone is named, that person remains in charge. The account holder may also use a will to appoint someone if this option is waived or if there is no such option for an account. With no direction, the terms of service prevail. If the terms of service do not mention what happens on an account holder's death, it may be possible for the fiduciary to access them.

In addition to creating a will and other estate planning documents, people who are making an estate plan might want to think about what will happen to their digital assets. This might include photos, social media accounts, blogs and more. Like other aspects of estate planning such as drawing up legal documents, it is important to talk to family members about these plans. This will increase the likelihood that a person's wishes will be carried out.

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Samuel J. Owen, P.C.
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Golden, CO 80401

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