Jennifer M. Luther
The Wisconsin Digital Property Act, under 2015 WI Act 300 (the “Act”), went into effect on April 1, 2016. It governs the disclosure of a deceased person’s digital property. At first blush, the connection between digital property and estate planning may not be apparent. Many individuals may not consider their social media pages as “property” in the traditional sense. This may partially explain the prior void in the law addressing digital property rights. Further, innovations in technology are rapidly evolving, and the law is continually trying to keep up.
The term “digital property” is defined under the Act to mean an electronic record in which a person has a right or interest. A non-exhaustive list of examples of digital property includes:
The Act generally adopts the uniform law known as the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). However, the Wisconsin Act uses the term “digital property” versus “digital asset” in the RUFADAA. This will allow courts and practitioners to integrate digital property rights into existing property law concepts in Wisconsin.
The Act governs the disclosure of digital property to a personal representative of a deceased person’s estate, agent under a power of attorney, trustee, or conservator or guardian of a protected person (a “fiduciary”). Despite the often broad powers granted to fiduciaries, attempts by fiduciaries to exercise authority in the area of digital property have been met with road blocks.
A password is just one of a number of obstacles that can block a well-meaning fiduciary’s access to digital property of a deceased owner. Other hurdles include multi-step identification measures, inadequate state laws addressing digital property, and federal laws requiring the consent of an individual for fiduciary access. Further, terms of service agreements often only recognize the original owner as the contractual owner, and not his or her fiduciary.
To address these obstacles, the Act creates the following three-tier priority system for determining the disclosure of digital property: 1) an online tool (e.g. Facebook’s Legacy Contact); 2) if the person has not used an online tool, the person may direct disclosure of his or her digital property using a governing instrument (e.g. will, trust, power of attorney); and 3) a person’s direction in an online tool or a governing instrument overrides contrary provisions in a terms of service agreement.
The Act includes provisions governing the disclosure of digital property to a fiduciary by a custodian. A custodian is defined as a person that carries, maintains, processes, receives, or stores a user’s digital property. Generally, a custodian is required to disclose a person’s digital property to a fiduciary if certain requirements are met and certain information is provided by the fiduciary. However, a custodian is only required to provide access which is sufficient for a fiduciary to perform the tasks that it has authority to do, which may not be full access.
This is where future conflict may occur between custodians and fiduciaries. The definitions of “catalogue” versus “content” become important when addressing the scope of access that is to be granted to a fiduciary. Using the example of e-mail, if a fiduciary has been granted access to a catalogue of electronic communications, the fiduciary will essentially only be able to see a log of who was communicated with and when. In contrast, if access to the content of electronic communications is granted, a fiduciary will be able to see the body of e-mail messages that were sent and received by the deceased individual.
The Act provides individuals with a number of options to express their intent to grant fiduciary access to their digital property. However, it is important to keep in mind that this is an opt-in statute, meaning that the user must affirmatively opt-in for a fiduciary to have authority to access to the user’s digital property. The scope of that access can be narrow or broad, depending on the wishes of the individual granting it.
Practitioners will need to think about how to educate their clients on their options for incorporating digital property into their estate plans. Considerations will include where this information is stored and how it will be transferred. The Act specifically focuses on non-probate transfer alternatives. It also recognizes marital property concerns in Wisconsin.
Most digital property can probably be valued in the same manner as other property. However, some forms of digital property may present interesting valuation issues. This usually depends on the identity of the decedent. For example, certain domain names may be of significant value. In those cases, appraisal services specific to digital property are available. Other digital property may be of significant sentimental value and pose distribution concerns.
On a more basic note, the creation, modification and storage of usernames and passwords warrants attention. There are commercial websites that will retain this information, but lawyers may also have a role in the maintenance and safekeeping thereof. Finally, it is also important to understand that simply sharing password inventories with family members is not the same thing as granting a fiduciary authorized access.
In sum, the Wisconsin Digital Property Act may not solve all of the legal issues posed by digital property. However, that does not mean that digital property should be ignored or overlooked in estate planning. Individuals should consider conducting their own “digital audits,” and think about how they would like to see their digital property preserved, if at all. Practitioners should consider updating their estate planning questionnaires to include digital property and affirmatively address the topic with clients.
If you have any questions about how the information in this article may affect you or your business, please contact Jennifer Luther at firstname.lastname@example.org or (608) 257‑2281 or your Stroud attorney.
DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice. This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship. You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.