MSU Extension Discusses Authorization for Release of Electronically Stored Information

This article is one in a series of articles focusing on estate and legacy planning. Authors are Kaleena Miller, Madison-Jefferson County Extension Agent, kaleena.miller1@montana.edu and Marsha Goetting, MSU Extension Family Economics Specialist, marsha.goetting@montana.edu,  E. Edwin Eck, Professor Emeritus, Allexander Blewett III School of Law, University of Montana.

In this digital age, many people keep only electronic copies of their electronic communications, namely, email messages, text messages, instant messages, and other electronic communication between private parties. Other people keep paper copies of some, but not all, of their electronic communications. Who has access to electronic communications if the person becomes incapacitated or after the person dies? According to Montana State University Extension Family Economics specialist Marsha Goetting, a 2017 Montana law answers this question.

“Many people use the services of private companies, called “custodians” by law, to store electronic communications and other documents on their servers. But when a user dies or loses the ability to manage their electronic communications, their fiduciaries --- the personal representatives of their estates, the trustees of their trusts, or the agents named in their financial powers of attorneys -- may be denied access to those documents by the custodians,” says Kaleena Miller, Madison-Jefferson County Extension Agent.

These fiduciaries may need access to electronic communications to locate the user’s assets, and liabilities, ascertain contractual rights and obligations, and locate the addresses of family members and beneficiaries of their estates.

“The Montana Legislature passed the Revised Uniform Fiduciary Access to Digital Assets Act in 2017 in response to this need. The law lets Montanans give trusted individuals access to their digital assets, which can include emails and other electronic communications on an internet server,” says Goetting.

Although these fiduciaries can easily access paper communications, they cannot access your electronic communications unless you include consent provisions in your will, trust, or financial power of attorney. Another alternative is to sign an “online” tool with each of your custodians.

According to Professor Emeritus E. Edwin Eck of the Alexander Blewett III School of Law at the University of Montana, “Consent provisions in your will, trust, or financial power of attorney are preferred for several reasons. First, typically custodians do not allow you to use an online tool to designate contingent fiduciaries. What happens if that person is unable to serve? Contrast this with your will, where most people name contingent personal representatives if a named personal representative is unable to serve. Similarly, contingent fiduciaries are easily designated in trusts and financial powers of attorney.

Second, most of us use several custodians. For example, we might have both Facebook and Google accounts. We would have to use separate online tools with each custodian. However, if you use a will or a trust as your primary estate planning document, you only make the designation in your will or your trust. Not only does a designation in a single document save time, but it also assures that the same person will have access to all your accounts.”

If estate planning documents have not been updated since 2017, now is the time to review them and add information about access to digital assets. Also, individuals will want to make a list identifying accounts and passwords and alert their fiduciaries how to find the information. Such a list should be kept in a safe place.

More information about the Montana digital assets law is in the MSU Extension MontGuide, Fiduciary Access to Electronic Communications and Digital Assets which can be found at bit.ly/3vrkwC6

If you do not have access to a computer or printer, call the MSU Extension Madison-Jefferson County Office for a copy of the printed information at 406-287-3282.