Attorney Howard Collens presented the most recent updates on Michigan’s new Fiduciary Access to Digital Assets Act. Now is the perfect time to update your will, trust and power of attorney to incorporate the latest options for dealing with your digital assets.

1. THE FIDUCIARY ACCESS
TO DIGITAL ASSETS ACT IN
MICHIGAN:
NOW THAT WE HAVE IT,
WHAT CAN WE DO?
HOWARD H. COLLENS
GALLOWAY AND COLLENS, PLLC

3. Photo Sharing
You probably already know that your computer's hard drive
isn't the ideal location for your cherished images. Hard
drives routinely crash, sending the data stored on them into
the abyss. Many people are storing their pictures online or
in the cloud. The only real question then, is this: What are
the best ways to store and share your photos online?

4. What Happens When a Person
Becomes Incapacitated or Dies?

5. Could someone else,
acting on behalf of the incapacitated client,
gain access to the account and photos?
What if the client was deceased?

6. Access to Digital Assets
would be challenging, if
not impossible, without a
Fiduciary Access to
Digital Assets law

7. Your Digital Afterlife
“While you may have many collections, all the things you
own combined create a greater personal collection where
the theme is you. You are the arbiter of what belongs or
does not belong. Increasingly, the things you gather for that
collection are digital.”
– Evan Carroll, Author of “Your Digital Afterlife”
http://www.yourdigitalafterlife.com/book/

8. What are Digital Assets?
• Digital assets come in a variety of forms, and are constantly changing,
along with technology and social trends.
• An individual may have a property ownership interest in an asset, or
merely a license.
• The term “digital assets” means, but is not limited to, files, including but not
limited to, emails, documents, images, audio, video, and similar digital
files which currently exist or may exist as technology develops or
such comparable items as technology develops, stored on digital devices,
including, but not limited to, desktops, laptops, tablets, peripherals, storage
devices, mobile telephones, smart phones, and any similar digital device
which currently exists or may exist as technology develops or such
comparable items as technology develops, regardless of the ownership of
the physical device upon which the digital asset is stored.
Excerpt from: The Elder Law Report, Vol. XXV, Number 1

9. Categories of Digital Assets
• Personal
• Stored on computers, smart phones, or other devices, or are uploaded to a
Web site or digital service
• Photographs, videos, emails, and music playlist
• Social Media
• May involve photos, videos and other electronic files stored on these accounts
• Financial
• Online banking, online bill-paying activities
• Online accounts with no connection to a brick-and-mortar establishment
(Amazon, eBay, PayPal and E*TRADE, BitCoin)
• Business
• Varies by types of business and extent of its computer or Internet associated
activities, which may include blogs, domain names, credit card and financial
data

11. • In 2011, the Uniform Law Commission established
the Fiduciary Access to Digital Assets Committee
to draft a free-standing act that will vest fiduciaries
with the authority to manage and distribute digital
assets, copy or delete digital assets, and access
digital assets

12. • July 2014 the ULC introduced 1st version of a Uniform
Fiduciary Access to Digital Assets Act (UFADAA)
• Only Delaware adopted law based on 2014 version
• In July 2015, the ULC developed a revised UFADAA

13. Revised Uniform Fiduciary Access to Digital Assets:
:
• Gives Account Holder control over whether digital
assets should be preserved, distributed or destroyed
• Authorizes access to digital assets that would not
violate the Federal Stored Communications Act, 18
USC 2701 and Computer Fraud and Abuse Act, 18
USC 1030

14. Revised Uniform Fiduciary Access to Digital Assets:
• If widely adopted, provides consistency throughout the
country
• Currently, there is a hodge-podge approach
• Authorizes access by:
• Agent under Power of Attorney
• Conservator
• Personal Representative
• Trustee

15. Revised Uniform Fiduciary Access to Digital Assets:
• Revised UFADAA requires the consent of the user
before granting access to contents of digital
communications.
• Priority to wishes expressed through tools like Google’s
Inactive Account Manager and Facebook’s Digital
Legacy Contact
• Service provider’s “Terms of Service” taken into
account

16. Revised Uniform Fiduciary Access to Digital Assets:
• Does not apply to employer email systems or assets
• Defers to account holder/client intent and privacy desires
• Encourages custodian compliance
• Protects fiduciaries, custodians and content providers
• States are starting to enact the RUFADAA

17. RUFADAA Updates
• Twenty-one states have currently passed the
Fiduciary Access to Digital Assets Act. California also
passed a partial version that only deals with
decedents’ estates.
• Five states have RUFADAA bills introduced in 2017.
• Twenty-nine states have plans to introduce a
RUFADAA bill in 2017. If they are all enacted, we will
have near-universal enactment in the U.S.
- Benjamin Orzeske, Chief Counsel of the Uniform Law Commission

18. RUFADAA Enactment Map
http://www.uniformlaws.org/Act.aspx?title=Fiduciary%20Access%20to%20Digital%20Assets%20Act,%20Revised%20(2015)

20. Michigan and FADAA
• HB 5034 was introduced, October 28, 2015 by Representative
Anthony Forlini
• Based on the ULC revised approach, HB 5034 offered a
comprehensive approach to Fiduciary Access to Digital Assets for
Michigan
• Joint Efforts of Elder Law and Disability Rights Section and Probate
and Estate Planning Sections to represent the interests of end users

21. Michigan and FADAA
• HB 5034 became law in March 2016
• Effective as of June 27, 2016
• Codified at MCL 700.1001 et seq.
http://www.legislature.mi.gov/(S(lbtllxurzntu2irpvxgxznb3))/mileg.aspx?page=getObject&objectName=mcl-Act-59-of-2016

23. Michigan’s
Fiduciary Access to Digital Assets Act
Per MCL 700.1003, FADAA Applies to:
• Fiduciary acting under a will or power of attorney
• Personal representative acting for a decedent estate
• Proceeding involving a conservator
• Trustee acting under a trust
• Digital custodian if the user resides in this state
• Does not apply to a digital asset of an employer used by an
employee in the ordinary course of business

24. Michigan’s
Fiduciary Access to Digital Assets Act
Definitions:
• Conservator - Expanded to include plenary guardian,
partial guardian, special fiduciary, special conservator and a
parent of a minor child. MCL 700.1002(e)
• Digital Asset - An electronic record in which a user has a
right or interest. Does not include an underlying asset or
liability unless the asset or liability is itself an electronic
record. MCL 700.1002(j)

25. Michigan’s
Fiduciary Access to Digital Assets Act
• Catalogue of electronic communications - Information
that identifies each person with which a user has had an
electronic communication, the time and date of the
communication, and the electronic address of the person.
MCL 700.1002(d)

26. Michigan’s
Fiduciary Access to Digital Assets Act
• Content of electronic communication - Information
concerning the substance or meaning of an electronic
communication that has been sent or received by a user,
the information is in electronic storage by a digital custodian
providing an electronic communication service to the public
or is carried or maintained by a digital custodian providing a
remote-computing service to the public, and the information
is not readily accessible to the public. MCL 700.1002(f)

27. Michigan’s
Fiduciary Access to Digital Assets Act
• Online tool – An electronic service provided by a digital custodian that
allows the user, in an agreement distinct from the terms-of-service
agreement between the digital custodian and user, to provide directions
for disclosure or nondisclosure of digital assets to a third person.
MCL 700.1002(x)
• A user may use an online tool to direct the digital custodian to disclose
or not to disclose some or all of the user’s digital assets, or may prohibit
or direct the digital custodian in a will, trust or power of attorney.
• The user’s direction using the online tool or estate planning document
overrides a contrary provision in a terms of service agreement.
MCL 700.1004

28. Michigan’s
Fiduciary Access to Digital Assets Act
HOW MUCH ACCESS DOES THE DIGITAL CUSTODIAN
NEED TO PROVIDE? MCL 700.1006
• At the Digital Custodian’s SOLE DISCRETION, they may
• Grant a fiduciary or designated recipient full access to the user's
account.
• Grant a fiduciary or designated recipient partial access to the
user's account sufficient to perform the tasks with which the
fiduciary or designated recipient is charged.
• Provide a fiduciary or designated recipient a copy in a record of any
digital asset that, on the date the digital custodian received the
request for disclosure, the user could have accessed if the user
were alive and had full capacity and access to the account.

29. Michigan’s
Fiduciary Access to Digital Assets Act
HOW MUCH ACCESS DOES THE DIGITAL CUSTODIAN
NEED TO PROVIDE? MCL 700.1006
• A digital custodian may assess a reasonable administrative charge
• A digital custodian is not required to disclose under this act a digital
asset deleted by a user
• If only a request for some but not all of the digital assets and if
segregation would impose an undue burden on the digital custodian, the
digital custodian may seek a court order to disclose some, all or
none of the digital assets. Allows for in camera review.

31. Michigan’s
Fiduciary Access to Digital Assets Act
Accessing Content vs. Catalogue
MCL 700.1007
Personal Representatives – Content of Digital Assets
If a deceased user consented to or a court order directs the
disclosure, a digital custodian shall disclose to the personal
representative the content of electronic communication if the
personal representative gives the digital custodian all of the
following:

32. Michigan’s
Fiduciary Access to Digital Assets Act
• A written request for disclosure
• A certified copy of the death certificate of the user
• A certified copy of the letters of authority or other court order
• Unless the user provided direction using an online tool, the
user’s will, trust, power of attorney or other record of the
user’s consent to disclosure
• If requested by the digital custodian, any of the following:
• Evidence linking account to the user
• A finding by the court that the user had a specific
account with the digital custodian.

33. Michigan’s
Fiduciary Access to Digital Assets Act
Accessing Content vs. Catalogue
MCL 700.1008
Personal Representatives – Catalogue of Digital Assets
Unless the user prohibited disclosure or a court directs
otherwise, a digital custodian shall disclose to the personal
representative a catalogue of electronic communications sent
or received by the user if the personal representative gives the
digital custodian all of the following:

34. Michigan’s
Fiduciary Access to Digital Assets Act
• A written request for disclosure
• A certified copy of the death certificate of the user
• A certified copy of the letters of authority or other court order
• If requested by the digital custodian any of the following:
• Identifying information for the user’s account
• Evidence linking the account to the user
• An affidavit stating that disclosure is reasonably
necessary for administration of the estate
• A finding by the court that the user had a specific
account with the digital custodian

35. Michigan’s
Fiduciary Access to Digital Assets Act
Power of Attorney – Content of Digital Assets MCL 700. 1009
To the extent a power of attorney grants an agent authority over the
content of electronic communications, and unless directed otherwise
by the principal or the court, a digital custodian shall disclose to the
agent the content of electronic communications if the agent gives
the digital custodian all of the following:
• An affidavit from the agent under MCL 700.5505
• If requested by the digital custodian, any of the following:
• Identifying information for the user’s account
• Evidence linking the account to the user

36. Michigan’s
Fiduciary Access to Digital Assets Act
Power of Attorney - Catalogue of Digital Assets MCL 700.1010
Unless otherwise ordered by the court, directed by the principal or
provided by a power of attorney, a digital custodian shall disclose to
an agent a catalogue of electronic communications sent or received
by the principal, if the agent gives to the digital custodian all of the
following:
• A written request for disclosure
• An original copy of the power of attorney
• An affidavit from the agent under MCL 700.5505
• If requested by the digital custodian, any of the following:
• Identifying information for the user’s account
• Evidence linking the account to the user

37. Michigan’s
Fiduciary Access to Digital Assets Act
Original User Trustee – Any Digital Assets MCL 700.1011
Unless otherwise ordered by the court or provided in a trust, a
digital custodian shall disclose to a trustee that is an original
user of an account, any digital assets of the account held in
trust, including catalogue and content.

38. Michigan’s
Fiduciary Access to Digital Assets Act
Non Original User Trustee – Content of Digital Assets MCL
700.1012
Unless otherwise ordered by the court, directed by the user, or
provided in a trust, a digital custodian shall disclose to a
trustee that is not an original user of an account, the content of
electronic communication, if the trustee gives to the digital
custodian all of the following:

39. Michigan’s
Fiduciary Access to Digital Assets Act
• A written request for disclosure
• A certificate of trust under MCL 700.7913 that includes
consent to distribute contents of electronic communications
to the trustee.
• If requested by the digital custodian, any of the following:
• Identifying information for the trust’s account
• Evidence linking the account to the trust

40. Michigan’s
Fiduciary Access to Digital Assets Act
Non Original User Trustee – Catalogue of Digital Assets
MCL 700.1013
Unless otherwise ordered by the court, directed by the user, or
provided in a trust, a digital custodian shall disclose to a
trustee that is not an original user of an account, a catalogue
of electronic communication in which the trust has a right or
interest, if the trustee gives to the digital custodian all of the
following:

41. Michigan’s
Fiduciary Access to Digital Assets Act
• A written request for disclosure
• A certificate of trust under MCL 700.7913
• A certification of the trustee that the trust exists and that the
trustee is currently acting trustee of the trust
• If requested by the digital custodian, all of the following:
• Identifying information for the trust’s account
• Evidence linking the account to the trust

42. Michigan’s
Fiduciary Access to Digital Assets Act
Conservator MCL 700.1014 – After an opportunity for a
hearing, the court may grant a conservator access to the
digital assets of a protected person.
Unless otherwise ordered by the court or directed by the user,
a digital custodian shall disclose to a conservator the
catalogue of electronic communications – not the content,
in which the protected person has a right or interest if the
conservator gives digital custodian all of the following:

43. Michigan’s
Fiduciary Access to Digital Assets Act
• A written request for disclosure
• A certified copy of the court order that gives the conservator
authority over the digital assets of the protected person
• If requested by the digital custodian, any of the following:
• Identifying information for the protected person’s account
• Evidence linking the account to the protected person
A conservator may request the digital custodian to suspend or
terminate an account of a protected person for good cause.
Request must be accompanied by certified copy of letter of
authority.

44. Michigan’s
Fiduciary Access to Digital Assets Act
• Fiduciary duties and authority as to digital assets are described in
MCL 700. 1015
• Digital custodians shall comply with the requests for disclosure by
Fiduciary within 56 days of receipt of required information. MCL
700.1016(1)
• If the digital custodian fails to comply, the fiduciary may petition
the court for an order directing compliance. MCL 700.1016(1)
• A fiduciary as well as digital custodian are immune from liability
for any action done in good faith in compliance with this act.
MCL 700.1015(8) and 700.1016(9)

45. Michigan’s
Fiduciary Access to Digital Assets Act
• A digital custodian may require a fiduciary or designated recipient
who requests disclosure or termination of an account to obtain a
court order that:
• Specifies that an account belongs to the protected person or
principal.
• Specifies that there is sufficient consent from the protected
person or principal to support the requested disclosure.
• Contains a finding required by law other than this act.
MCL 700.1016(8)

46. Michigan’s
Fiduciary Access to Digital Assets Act
• An interested person may petition the probate court to limit,
eliminate, or modify the personal representative's powers with
respect to the decedent's digital assets.
• Hearing shall be heard within 14 and 56 days of filing the petition.
• MCL 700.1017 is a Michigan specific provision not found in the
RUFADAA.

48. Facebook
Memorialize the account
“We will memorialize the Facebook account of a deceased person when we receive a valid
request. We try to prevent references to memorialized accounts from appearing on
Facebook in ways that may be upsetting to the person's friends and family, and we also take
measures to protect the privacy of the deceased person by securing the account.
Please keep in mind that we cannot provide login information for a memorialized
account. It is always a violation of our policies to log into another person's account.”
• Memorial accounts can never be logged into again
Ask to have profile removed or deleted
“We will process certain special requests for verified immediate family members, including
requests to remove their loved one's account. This will completely remove the profile and all
associated content from Facebook, so no one can view it.”
Need to submit
• The deceased's birth certificate
• The deceased's death certificate
• Proof of authority under local law that you are the lawful representative of the
deceased or his/her estate
From: Facebook

49. Facebook
Legacy Contact is someone you choose to look after your account if it's memorialized. Once your account
is memorialized, your legacy contact will have the option to do things like:
• Write a pinned post for your profile (ex: to share a final message on your behalf or provide information
about a memorial service)
• Respond to new friend requests (ex: old friends or family members who weren't yet on Facebook)
• Update your profile picture and cover photo
• You also have the option to allow your legacy contact to download a copy of what
you've shared on Facebook, and we may add additional capabilities for legacy contacts in
the future.
Your legacy contact can't:
• Log into your account
• Remove or change past posts, photos and other things shared on your Timeline
• Read messages you've sent to other friends
• Remove any of your friends
From: Facebook

50. Twitter
“In the event of the death of a Twitter user, we can work with a person authorized to act on the
behalf of the estate or with a verified immediate family member of the deceased to have an
account deactivated.
In order for us to process an account deactivation, please provide us with all of the following
information:
The username of the deceased user's Twitter account (e.g., @username or
twitter.com/username)
A copy of the deceased user’s death certificate
A copy of your government-issued ID (e.g., driver’s license)
A signed statement including:
Your first and last name
Your email address
Your current contact information
Your relationship to the deceased user or their estate
Action requested (e.g., ‘please deactivate the Twitter account’)
A brief description of the details that evidence this account belongs to the
deceased, if the name on the account does not match the name on death
certificate.
A link to an online obituary or a copy of the obituary from a local newspaper
(optional)”
From Twitter: How to Contact Twitter About a Deceased User

51. Twitter
“Please send us the documentation by fax or mail to the following address:
Twitter, Inc.
c/o: Trust & Safety
1355 Market St., Suite 900
San Francisco, CA 94103
Fax : 1-415-865-5405”
*Please note: We are unable to provide login information for the
account to anyone regardless of his or her relationship to the
deceased.*
From Twitter: How to Contact Twitter About a Deceased User

52. Google Inactive Account Manager
• Can be set up through Google Settings
• Lets Google know what to do with some or all Google related
accounts after a specified period of inactivity
• Services that can be controlled: +1s; Blogger; Contacts and
Circles; Drive; Gmail; Google+ Profiles, Pages and Streams;
Picasa Web Albums; Google Voice and YouTube
• Google sends a warning text and email before action is taken
• Can have Google delete the accounts
• What about items bought on Google Play?

53. Provide Access
• Create a document and note if the property is personal
or has monetary value
Examples of note
Excerpt from: The Trust Advisor

54. Provide Instructions:
• If you want a site to continue, for example if you have a
website or blog, you need to leave instructions for keeping
it up or having someone take it over and continue it.
• If a site is currently producing or could produce revenue (e-
books, photography, videos, blogs), make sure your
successor knows this.
• If there are things on your computer or hard drive that you
want to pass on (scanned family photos, ancestry research,
a book you have been writing), put them in a “Do Not
Delete” folder and include it on your inventory list.
Excerpt from: Estate Planning for Digital Assets and Social Media

55. Inventory Checklist
• Make sure you include everything from your computer,
other devices, and the “virtual world” (i.e. cloud,
internet)
• All email accounts
• All social websites you participate in
• Financial and commerce accounts
• Make a simple spreadsheet with passwords to access
assets
Digital Assets Inventory
Asset Access Wishes
Name Contents Location Username Password Instructions Recipient

56. Who is in Charge?
• After you inventory your digital assets, you must decide
who to give the access to in the event of your death or
disability.
• Make sure you indicate whether you want your digital
executor to archive your content, share your content
with others, or delete your content (and/or secure
privacy of some content which may be harmful).
• Make sure to include any special instructions (Think
sensitive and/or embarrassing content).

58. Where Should I Note My Intent?
• Powers of Attorney
Sample language: Electronic and Social Media. My Agent shall have full
access to the content of electronic communications and catalogue of electronic
communication and to all of my digital assets. My Agent shall have the authority
to obtain, use or change user names and passwords; to manage, add, delete,
modify, curate, archive, maintain, and increase or limit access to my digital
assets; to transfer ownership rights of my digital assets; to maintain, modify and
delete digital assets. These powers shall apply to all social media, financial and
cloud storage accounts, including, but not limited to, iTunes, Pandora, Kindle,
Amazon Prime, Google Play, Spotify, Tidal, Netflix, Hulu and all other online
content vendors, Facebook, Twitter, LinkedIn, corporate affinity and points
programs, banking and financial institution on-line access points, data and photo
archiving providers, blogs and websites, whether in my individual name, through
a business, through a pseudonym or anonymously. My Agent shall have authority
to exercise all privacy rights to limit or grant access to my digital assets, including
search history, cookies and other plug-in data, cached images and files, and all
other forms of browsing or transaction records. I grant to my Agent all authority
and power permitted under the Michigan Fiduciary Access to Digital Assets Act,
MCL 700.1001, et seq., as amended, or UFADAA as it may be enacted in any
state where I or my digital assets may be located.

59. Where Should I Note My Intent?
• Last Will and Testament
Sample Language: To access the content of electronic communications and catalogue
of electronic communication and to all of my digital assets; to obtain, use or change user
names and passwords; to manage, add, delete, modify, curate, archive, maintain, and
increase or limit access to my digital assets; to transfer ownership rights of my digital
assets; to maintain, modify and delete digital assets. These powers shall apply to all
social media, financial and cloud storage accounts, including, but not limited to, iTunes,
Pandora, Kindle, Amazon Prime, Google Play, Spotify, Tidal, Netflix, Hulu and all other
online content vendors, Facebook, Twitter, LinkedIn, corporate affinity and points
programs, banking and financial institution on-line access points, data and photo archiving
providers, blogs and websites, whether in my individual name, through a business,
through a pseudonym or anonymously. The Fiduciary shall have authority to exercise all
privacy rights to limit or grant access to my digital assets, including search history, cookies
and other plug-in data, cached images and files, and all other forms of browsing or
transaction records. The Fiduciary shall have all authority and power permitted under the
Michigan Fiduciary Access to Digital Assets Act, MCL 700.1001, et seq., as amended, or
UFADAA as it may be enacted in any state where I or my digital assets may be located.

60. Where Should I Note My Intent?
• Revocable Living Trust
Sample Language: To access the content of electronic communications and catalogue
of electronic communication and to all of my digital assets; to obtain, use or change user
names and passwords; to manage, add, delete, modify, curate, archive, maintain, and
increase or limit access to my digital assets; to transfer ownership rights of my digital
assets; to maintain, modify and delete digital assets. These powers shall apply to all social
media, financial and cloud storage accounts, including, but not limited to, iTunes, Pandora,
Kindle, Amazon Prime, Google Play, Spotify, Tidal, Netflix, Hulu and all other online content
vendors, Facebook, Twitter, LinkedIn, corporate affinity and points programs, banking and
financial institution on-line access points, data and photo archiving providers, blogs and
websites, whether in my individual name, through a business, through a pseudonym or
anonymously. Trustee shall have authority to exercise all privacy rights to limit or grant
access to my digital assets, including search history, cookies and other plug-in data, cached
images and files, and all other forms of browsing or transaction records. Trustee shall have
all authority and power permitted under the Michigan Fiduciary Access to Digital Assets Act,
MCL 700.1001, et seq., as amended, or UFADAA as it may be enacted in any state where I
or my digital assets may be located.

61. Where Should I Note My Intent?
• General Assignment
Sample Language: To the extent possible, this assignment shall also act
as delivery of all of my social media accounts, including but not limited to
Facebook, Twitter, LinkedIn, corporate affinity and points programs, banking
and financial institution on-line access points, any and all data and photo
archiving sites, blogs and websites, email and all other digital assets including
both the catalogue of electronic communications and content of electronic
communications of mine whether I am maintaining such accounts in my
individual name, through a pseudonym or anonymously.

63. Incorporating Digital Estate Planning
into Your Practice
• To help the process, a questionnaire for the client to list all digital assets
and the value of those assets
• Discuss if any of the assets have financial value
• Keep record of all passwords and profiles
• There are websites specifically designed to release account
information after death to designated beneficiaries but they may be
here today gone tomorrow.
• Suggest clients protect significant data with strong encryption

64. Test Out Our New Law
• Now that FADAA is here in Michigan:
• What Works?
• What Needs Improving?
• Are we in Probate Court more or less over these
issues?
• I would love to hear how you and your clients
experience Fiduciary Access to Digital Assets

65. Howard H. Collens
Galloway and Collens, PLLC
26075 Woodward Ave, Suite 200
Huntington Woods, Michigan 48070
248.545.2500
GallowayCollens.com
Howard@GallowayCollens.com
Twitter: @howardcollens
@probatelawmi
@realestatelawmi