South Carolina Trust
and Estate Law Blog

While a number of states (South Carolina included) have introduced legislation to adopt the Uniform Fiduciary Access to Digital Assets Act, only three have actually adopted it thus far. The first was Delaware, which adopted it on August 12, 2015, effective January 1, 2015. Second was Oregon, adopted on March 2, 2016, effective January 1, 2017. Now Wyoming makes the third, which adopted the uniform law on March 7, 2016.

The Uniform Fiduciary Access to Digital Assets Act allows personal representatives, executors, guardians/conservators, and persons acting under a power of attorney to have access to digital accounts of a decedent or incapacitated person. The law is intended to make it easier to gather the digital assets and get access to them to administer a decedent’s or incapacitated person’s estate. Nowadays, an important part of estate planning will be focused on generating a list of digital assets and providing the ability for our designated agents to obtain access to the digital assets when necessary. Other bills are pending around the country, so it is expected that this uniform law will be adopted somewhat rapidly.

South Carolina has a bill currently pending in the state legislature. You can find it here. It will be interesting to see if this bill can move forward, particularly when lots of attention seems to be on the highway bill and gas tax proposal. I am unsure however how effective this bill will be. The various terms of services agreements users accept when using online services can potentially take the effectiveness out of this law. This will be a fascinating area of estate planning and probate to watch in the coming years.

Check out this prior post for some examples of why this bill can be so important.

The Social Security Administration recently issued an Emergency Message to all personnel requiring workers to specifically inform SSI applicants or beneficiaries of the reasons a special needs trust has been rejected by the agency. And elder law attorneys everywhere say thank you!

In the past, when the SSA determined that assets in an SSI beneficiary’s or applicant’s trust were countable, the agency would frequently send a notice of ineligibility to the beneficiary or applicant because his/her assets exceeded the resource limit. However, this notice almost never explained the reasoning behind the SSA’s rejection of the trust.

The new Emergency Message, which went out to all field level SSA personnel, requires caseworkers to spell out exactly what portion of the Program Operations Manual System (POMS) applies to the trust being rejected. Unfortunately, the Emergency Message does not tell field workers that they have to explain their reasoning in plain English — merely citing the appropriate section of the POMS appears to be enough. While this will make it relatively easy for professionals to determine what went wrong with a trust and whether an appeal is in order, it will likely give the layperson little if any guidance about his or her trust.

To read the Emergency Message, go here.

The stories are starting to become more frequent and familiar. They generally involve grieving families trying to access their deceased loved one’s online accounts, social media, or even devices such as iPhones and iPads. Those of us who are online are likely to amass a great deal of data, such as messages, emails, voice mails, photos, passwords, music, and videos on our devices and in the cloud, which can become painfully out of the reach of our loved ones after our lifetimes. It can be difficult to even obtain a password to access an iPhone or iPad of a deceased loved one without a court order. Add on top of this the frustration of each online service provider instituting it’s own policy for providing access to our loved ones’ accounts, you can easily see that this is a situation we would want to avoid.

See the links below for recent examples:

Widow Needed A Court Order to Access iPad

A Legal Showdown With Apple To Access iPhone Photos

Is there anything you can do to plan for allowing your family access to your online life, if that is your wish? Of course there is. I will talk about that in Part 2 of this post.