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WHO WILL RUN MY FANTASY
FOOTBALL TEAM
WHEN I’M GONE:
THE LATEST AND GREATEST
ON FIDUCIARY ACCESS
TO DIGITAL ASSETS
HOWARD H. COLLENS
GALLOWAY AND COLLENS, PLLC
Card-based simulations, like Strat-O-Matic had existed since the 1960s.
The results on the player cards are determined by the athlete's real-life
statistics for the previous year
Writer, Daniel Okrent founded Rotisserie League Baseball in 1980.
The entry fee for the initial ten-team Rotisserie League, was two hundred and
fifty dollars, and the winner, at season’s end, would collect half of the over-all
pot. Players created virtual teams and used only the stats from the box scores
in the morning paper.
- http://nbcsports.Msnbc.Com/id/20629828
• Late 90s the “fantasy” sports concept expanded to include football.
• Creation of the Fantasy Sports Trade Association (FSTA) in 1999
• Approximately forty million fantasy sports participants in North America,
including eight million women.
• Estimated that over 19 million people compete in public and private
leagues online nationally - NFL’s most significant marketing tool.
• Is It legal? The laws relating to fantasy sports vary by state - fantasy
sports is considered a game of skill, which is classified as a game where
skill is the predominant factor in determining the winner.
Http://www.Fanduel.Com/terms
• Founded in 2009 is the most popular daily-fantasy platform.
• Awarded more than five hundred million dollars in cash prizes last year
and is approaching $1.5 billion this year.
• Terms of Service: “You are responsible for maintaining the
confidentiality of your Username and Password, and are fully responsible
for all uses of your Username and Password, whether by you or
others…Winners may be requested to return via email or regular mail an
affidavit of eligibility, a publicity agreement and appropriate tax forms by
a specified deadline. Failure to comply with this requirement can result in
disqualification. Any prize notification returned as undeliverable may
result in disqualification and selection of an alternate winner.”
• There are no written policies on fiduciary access to accounts.
- http://www.Draftkings.Com/help/terms
• Founded in 2011 - daily fantasy sports contest provider with daily and
weekly fantasy sports-related contests
• In February 2014 - awarded $50 million in prizes to players in weekly
fantasy sports
• Terms of Service: “…DraftKings reserves the right to terminate the
entrant’s account and withhold or revoke the awarding or any prizes
associated with such account. In such a situation, DraftKings may pay
out any withheld or revoked prizes to the other entrants in the relevant
contest in a manner consistent with the Rules of the Contest.”
• There are no written policies on fiduciary access to accounts.
Who will run my fantasy football team
when I am gone?
Access to this content
would be challenging, if
not impossible, without a
Fiduciary Access to
Digital Assets law
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
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
• 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
• 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
The UFADAA:
• 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
The UFADAA:
• 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
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
Revised Uniform Fiduciary Access to Digital Assets
RUFADAA:
• 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
Michigan and FADA
• HB 5034 was introduced, October 28, 2015 by Representative
Anthony Forlini and referred to Committee on Communication and
Technology
• The Committee on Communications and Technology met on
November 3, 2015 with HB 5034 on the agenda.
• HB 5034 entitled Fiduciary Access to Digital Assets Act is newly
introduced legislation and still subject to change
http://www.legislature.mi.gov/(S(umtssvcqfyod3hjtieux1zlu))/mileg.aspx?page=getobject&objectname=2015-HB-5034
House Bill 5034:
Fiduciary Access to Digital Assets Act
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
House Bill 5034:
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.
• 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.
House Bill 5034:
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.
House Bill 5034:
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.
House Bill 5034:
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.
• 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.
House Bill 5034:
Fiduciary Access to Digital Assets Act
Content vs. Catalogue
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:
House Bill 5034:
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.
House Bill 5034:
Fiduciary Access to Digital Assets Act
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:
House Bill 5034:
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
House Bill 5034:
Fiduciary Access to Digital Assets Act
Power of Attorney – Content of Digital Assets
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
House Bill 5034:
Fiduciary Access to Digital Assets Act
Power of Attorney - Catalogue of Digital Assets
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
House Bill 5034:
Fiduciary Access to Digital Assets Act
Original User Trustee – Any Digital Assets
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.
House Bill 5034:
Fiduciary Access to Digital Assets Act
Non Original User Trustee – Content of Digital Assets
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:
House Bill 5034:
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
House Bill 5034:
Fiduciary Access to Digital Assets Act
Non Original User Trustee – Catalogue of Digital Assets
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:
House Bill 5034:
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
House Bill 5034:
Fiduciary Access to Digital Assets Act
Conservator – 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:
House Bill 5034:
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.
House Bill 5034:
Fiduciary Access to Digital Assets Act
Digital custodians shall comply with the requests for disclosure
by Fiduciary within 56 days of receipt of required information.
If the digital custodian fails to comply, the fiduciary may
petition the court for an order directing compliance.
A digital custodian is immune from liability for any action done
in good faith in compliance with this act.
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
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
“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
“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
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?
Provide Access
• Create a document and note if the property is personal
or has monetary value
Examples of note
Excerpt from: The Trust Advisor
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
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
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).
Where Should I Note My Intent?
• Powers of Attorney
Sample language: Electronic and Social Media. To access the
content and catalogue of any and all of my online accounts; to obtain,
use or change any of my usernames and/or passwords to any of my
online accounts; to manage, add, delete, modify, curate, archive,
maintain, and increase access or limit access to any of my online
content; to transfer ownership rights and to maintain, modify, delete, or
cancel any of my online accounts. Such powers shall apply to 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 of mine whether I am maintaining such
accounts in my individual name, through a business, through a
pseudonym or anonymously.
Where Should I Note My Intent?
• Last Will and Testament
Sample Language: Electronic and Social Media. To access the content and
catalogue of any and all of my online accounts; to obtain, use or change any of
my usernames and/or passwords to any of my online accounts; to manage, add,
delete, modify, curate, archive, maintain, and increase access or limit access to
any of my online content; to transfer ownership rights and to maintain, modify,
delete, or cancel any of my online accounts. Such powers shall apply to 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 of mine whether I am maintaining such accounts in my
individual name, through a business, through a pseudonym or anonymously.
Where Should I Note My Intent?
• Revocable Living Trust
Sample Language: Electronic and Social Media. To access the content and
catalogue of any and all of Settlor’s online accounts; to obtain, use or change any
of Settlor’s usernames and/or passwords to any of Settlor’s online accounts; to
manage, add, delete, modify, curate, archive, maintain, and increase access or
limit access to any of Settlor’s online content; to transfer ownership rights and to
maintain, modify, delete, or cancel any of Settlor’s online accounts. Such powers
shall apply to all of Settlor’s 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 of Settlor’s whether Settlor is maintaining such accounts
in Settlor’s individual name, through a business, through a pseudonym or
anonymously.
Where Should I Note My Intent?
• General Assignment
Sample Language: To the extent possible this assignment shall also
act as delivery of all of the content and catalogue of my social media
accounts, including but not limited to Facebook, Twitter, LinkedIn, any
and all data and photo archiving sites, blogs and websites of mine
whether I am maintaining such accounts in my individual name,
through a pseudonym or anonymously.
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
(PasswordBox.com or AssetLock.net)
• Suggest clients protect significant data with strong encryption
The State of the Law Is In Flux
• In matters of incapacity and post death, the Probate laws (and in certain cases in Michigan, the Mental Health Code) will control who can access digital assets
• Overwhelmingly, the law has been silent on this issue
• Digital companies have created terms of service agreement to begin to address the management of digital property after incapacity and death
• No one really reads the terms of service agreements
• Only eight states have passed legislation regarding access to digital assets (Delaware, Oklahoma, Idaho, Rhode Island, Indiana, Virginia, Nevada and Connecticut, who was the first in 2005)
Howard H. Collens
Galloway and Collens, PLLC
26075 Woodward Ave, Suite 200
Huntington Woods, Michigan 48070
248.545.2500
GallowayCollens.com
Twitter: @howardcollens
@probatelawmi
