Digital Assets and Online Accounts

Almost everyone now holds something of value online: photographs, email, financial and business accounts, loyalty balances, domain names, cryptocurrency. Families routinely discover that having the will does not mean having access, and that a provider will not simply hand it over because someone has died.

Maryland has adopted the uniform law on fiduciary access to digital assets, which sets out who may reach what. Understanding the order of authority is the practical part.

The order that decides access

Three sources can speak to this, and they do not rank equally.

1. The provider’s online tool. Where a service offers a separate tool that lets you name who may receive your account, and that setting can be changed at any time, your choice there overrides conflicting directions in your will, trust or power of attorney. Google’s inactive account manager and Facebook’s legacy contact are the familiar examples.
2. Your legal documents. Where there is no online tool, or you did not use it, your directions in a will, trust, power of attorney or other record control.
3. The terms of service. Your directions override a contrary provision in the provider’s terms, so long as the terms did not require you to take a separate affirmative act. Where you have given no direction at all, the terms govern, which usually means the account is closed and the contents are lost.

The consequence is worth stating plainly: a carefully drafted will can be defeated by a setting you clicked once, years ago, and forgot. Reviewing those settings is part of doing this properly.

Content and the catalogue are treated differently

The law distinguishes the content of electronic communications, meaning the body of your emails and messages, from the catalogue, meaning the record of who you corresponded with and when. Content is protected more strictly and generally requires your explicit consent before a fiduciary can see it. Silence in your documents is usually read as withholding consent to content.

So a will that says nothing does not produce a neutral result. It produces a restrictive one.

What to put in your documents

• Explicit authority for your personal representative to access, control and terminate digital accounts
• Explicit consent to disclosure of the content of electronic communications, if that is what you want
• The same authority in your power of attorney, so an agent can act while you are alive but incapacitated
• Matching authority in any trust, for assets held there

Inventory, but do not put passwords in your will

Keep a current list of accounts and where to find them. Do not put credentials in your will: a will becomes a public record when it is filed, and it is often out of date by the time it is used. A reputable password manager with a designated emergency contact, or a sealed list kept with your documents and updated, is the better approach. Tell your personal representative that the list exists and how to reach it.

Cryptocurrency is its own problem

Assets secured by a private key are unrecoverable without it. No statute, court order or provider can retrieve them. If you hold them, the succession plan for the key is the plan; everything else is decoration.

Business and creative accounts

Domain names, a business’s social accounts, customer lists, published work and its royalties all have value and successors. Address who takes them over, not just who inherits the proceeds.

Related

• Wills
• Power of attorney
• Small estates

Official resources

• Md. Code, Estates and Trusts section 15-603
• Maryland Register of Wills

Talk with a Towson attorney

The Law Office of Thomas K. Mallon, LLC offers a free consultation. Call (410) 847-9075 or request a consultation online. The office is at 1107 Kenilworth Drive, Suite 305, Towson, MD 21204.

This page provides general information about Maryland law. It is not legal advice, and reading it does not create an attorney-client relationship. Maryland law changes, and how it applies depends on the facts of your situation.