2017 Ark Legislative Update on Estate Planning Issues

 

2017 Arkansas Legislative Update

Know How These New Laws Could Affect Your Estate 

The Arkansas Legislature passed two new estate planning-related acts during the Spring 2017 Legislative Session:  The Revised Uniform Fiduciary Access to Digital Assets Act and the Dynasty Trust Act.  A few highlights from these acts are outlined below.

The Revised Uniform Fiduciary Access to Digital Assets Act sets forth the rules of engagement that fiduciaries (such as agents, guardians, personal representatives and trustees) and custodians of digital assets (such as Google accounts, Amazon accounts and social media accounts) are to follow when a fiduciary seeks to access or view a user’s digital assets. In general, a user is given the power to manage and dispose of his or her digital assets as he or she would be able to do with respect to other assets.  The Act gives a fiduciary the following powers over the digital assets of a user:

1) If the custodian of the digital asset provides an online tool under which the user can specifically set forth the individuals who can access his or her digital assets and the extent to which such individuals can access his or her digital assets, then such instructions become legally enforceable and trump other digital asset access provisions in the Act.  Note that a boilerplate terms-of-service agreement does not constitute an online tool as users have little to no control over such an agreement.

2) If the custodian does not provide an online tool or if the user fails to use the online tool, then the instructions set forth in the user’s power of attorney, will or trust, as the case may be, or other written record will govern to what extent the fiduciary can access the user’s digital assets.

3) If the user fails to provide direction in his or her power of attorney, will, trust or other written record, then the terms-of-service agreement for the user’s account will determine whether and to what extent the fiduciary can access the user’s digital assets.

Note that unless the user specifically consents to disclosure of the content of his or her digital assets (for example, the body of emails), the custodian is only required to disclose the existence of the digital asset and an electronic catalogue of the user’s communications (i.e., to and from information and the dates of communication).  Generally, to access a user’s digital assets, the fiduciary is required to submit to the custodian a written request specifying the digital assets or electronic catalogue the fiduciary wishes to obtain and a certified copy of the document granting the fiduciary the authority to access the digital assets.

In light of the passage of the Act and the proliferation of digital assets in today’s society, you may want to take a look at the account and privacy settings for your email accounts, social media accounts and any other online accounts you have and see if there is an online tool under which you can specify the individuals who can access such accounts and under what conditions they can do so.  You should also review your estate planning documents (in particular, your revocable trust, will and durable power of attorney) to ensure that the fiduciaries thereunder are given specific authority to access your digital assets.

The Dynasty Trust Act effectually eliminates the dreaded rule against perpetuities, which forces the termination of a trust and the vesting of trust property in trust beneficiaries after a certain period of time (i.e., it preventes perpetual trusts).  Many clients seek to maintain assets in trust for as long as possible, so this Act should come as a welcome relief.  The Act also permits the use of cascading powers of appointment as long as there is a trustee in place who can sell the assets of the trust or convey an absolute fee in possession of land or full ownership of personal property, or there is someone who has the authority to terminate the trust. 


For more information or if you have further questions about trust and estate planning, please contact one of our Trust & Estate Planning Attorneys. Click here for more about this practice group and a list of attorneys. 

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This news alert is created by the attorneys in Trust & Estate Planning Practice Group at Friday, Eldredge &Clark, LLP. The information provided is not a substitute for legal advice and should be considered for general guidance only. Please contact one of our attorneys for specific legal advice regarding this matter.