The Revised Uniform Fiduciary Access to Digital Assets Act
Welcome to May! It feels great to see the sun again. For those of you wondering how your fiduciary can access your digital assets and accounts, I have some news. The Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA” or the “Act”) is effective in California as of January 1, 2017.
The Act allows individuals (“users”) to give another person (“fiduciary”) the authority to access the user’s digital assets after the user’s death. As I mentioned, the Act only authorizes access after death. The fiduciary may not access an incapacitated user’s digital assets, even if the fiduciary is the named successor trustee, agent under a durable power of attorney or a conservator of the estate (and is already acting on behalf of the user with regard to non-digital assets). The fiduciary must wait until the death of the user to access the user’s digital accounts and assets.
The “custodian” (for example, Facebook, Google, Pay-Pal, etc.) may grant the fiduciary access to the account holder’s digital assets, but there are many hoops to jump through, including providing evidence that the user/decedent is linked to the account. The fiduciary may be required to obtain a court order prior to accessing the account. The custodian is not required to provide passwords, so this may all be for naught if the fiduciary does not know the account, username and password.
The Act is intended to protect both the fiduciary and custodian. It provides that the fiduciary’s access to the deceased user’s digital account is not a federal computer-fraud and unauthorized-computer-access laws, or term of use agreements with the providers. The fiduciary and custodian (providers) are both protected under the Act. However, how much help it will be to individual users and their fiduciaries remains to be seen. Still, it is a first step. So far nineteen states have adopted the RUFADAA.
As I have mentioned in previous blogs, how your fiduciary can access your digital assets is a relatively new issue in estate planning. It is also situation where state law regarding inheritance and incapacity bumps up against both federal computer laws and individual contract law with providers (term of use agreements).
I hope your spring is going well. I spent a week in Washington, D.C. in April (pictured). It was beautiful! I had not been there for 25 years. There were a number of new museums since my last visit and I was able to visit 3 of them: the National Museum of African American History and Culture, National Museum of the American Indian and the Newseum. All were fantastic; I learned so much.
Call me if you have digital assets you wish to discuss. And happy summer!