What Happens to Digital Assets in Montana

Montana does not currently have any laws about what happens to digital assets after death. But Montana lawmakers are considering adopting the Uniform Fiduciary Access to Digital Assets Act (UFADAA), which would give your personal representative very broad authority over your digital assets – maybe even more than you would want.

However, until UFADAA (or another law that deals with this issue) becomes law in Montana, no one will have authority to access or manage your digital assets. After you die, your online presence will continue on without you, and – unless you leave your personal representative username and login information -- there will be little that your personal representative can do to get into your accounts or files.

What Are Digital Assets?

“Digital assets” are any digital record that you own or have control over. This includes email accounts, websites, social media accounts, financial accounts, digital files (music, photos, movies), apps, frequent flyer rewards, or any other online or digital account or file. Your access to these accounts or files is usually limited by the “terms of service” that you agree to when creating an account or buying or licensing a product online.

Learn more about What Are Digital Assets?

What Will Happen to My Digital Assets After I Die?

In Montana, what happens to your digital assets depends on whether you’ve made a plan. At this time, Montana law gives your personal representative no authority to access your digital assets. So unless you leave a list of your accounts, instructions about how to access them, and guidance about what to do with them, your digital assets will continue to exist, but nobody will be able to access, modify, or delete them. Most accounts and files will just continue untouched until the company that manages them terminates the account, at which point all data will be lost.

This inability to get into your accounts is disconcerting because your personal representative may need access your digital assets to 1) officially wrap up your affairs, and 2) follow your wishes about what should happen to your digital accounts and files.

Read more about Why Your Personal representative Needs Access to Your Digital Assets.

A New Law Proposed: UFADAA

In 2015 SB 266, Montana lawmakers have proposed adopting the Uniform Fiduciary Access to Digital Assets Act (UFADAA). If passed, law would give personal representatives very broad authority to access, control, and manage a deceased person’s digital assets. Not only does UFADAA give personal representatives authority to manage digital assets, it gives personal representatives the power to demand access to accounts and files from the companies that control them. So under UFADAA, a personal representative is authorized to use a deceased person’s username and password to go into an email account. And further, if the personal representative does not have the username or password, he or she can demand access from the email provider.

Of course, as with every aspect of the job, your personal representative must act only in the best interest of your estate and may access your digital assets only to wrap up your affairs. So while your personal representative will be able to get into your email account to get information about a bill that needs to be paid, he or she may not send mail posing as you or gratuitously read your messages.

If UFADAA becomes law and you are worried that your personal representative will have too much access to your digital accounts or files, you can make a plan to keep certain assets private. See “Limiting Access Your Accounts,” below.

Learn more about the Uniform Fiduciary Access to Digital Assets Act (UFADAA).

Leaving Instructions About Your Digital Assets

The best way to ensure that your personal representative will be able to get in to your accounts after your die is to very clearly provide instructions and access information. Leave a list of your accounts with usernames and passwords and explain what you want done with each one. You can leave this information in a letter to be found after you die. Just keep the letter in a secure place, make sure that your personal representative knows where to find it, and remember to keep it up to date.

Leaving instructions is a good idea even if Montana passes UFADAA. Although UFADAA does allow your personal representative to ask companies for access to your accounts, the process for doing so will be long and trying – in part because most companies are likely to resist. It will be much less burdensome for your personal representative if you simply leave a list of access information and instructions. That way, he or she can just go into the accounts and do the job without having to either guess about what you want or ask each company for permission.

Limiting Access Your Digital Assets

Maybe you don’t want your personal representative going into your accounts after you die. That certainly seems like a reasonable request – if the accounts and files are private in life, shouldn’t they also be private in death?

The best way to limit your personal representative’s access to your digital assets is to leave clear instructions about which assets will be useful for wrapping up your affairs, and which should remain untouched.

Here are examples of how you could limit access to your digital assets in the letter to your personal representative:

  • I’m providing the username and password for my main email address because you may need to get into that account to get information about my finances. I do have other email accounts, but I do not want you to access those for any reason. They are private, and do not contain anything that will help you wrap up my estate.
  • On my computer, you'll find the journal I've kept in Word for the last decade or so. I’m leaving you the password, in case you want to have a look at it. However, please do not read my journal entries for 2010 and 2011. That was a difficult period of my life, and I want my thoughts about that time to remain unknown to my loved ones.

This won’t work for everyone, and you probably have a gut feeling about whether or not your personal representative would follow your instructions.

When asking for privacy isn’t enough, you may be able to take steps to hide the assets that you don’t want to share. For example, if you don’t want your personal representative to access a journal you keep on your personal computer, you can protect it with a strong password that you don’t share. For digital assets hosted by a third party, you could reduce evidence of an account by using only public computers to access it. This suggestion to hide your private digital information has nothing to do with the law, it just reflects that you can take some practical steps to keep your personal representative from knowing about or accessing some digital assets.

Finally, you could see a lawyer to discuss creating a legal protection for your private digital assets. An attorney may be able to craft a provision for your will that explicitly prohibits your personal representative from accessing certain assets. Or the attorney could help you set up a trust that appoints a trusted person to guard the assets on your behalf.

(Montana -- UFADAA Proposed)

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