In the Digital Afterlife blog we explored the ramifications of your passing and the impact on an executor’s ability to access online accounts. When you pass away could an executor access your digital assets? Perhaps you don’t want these people accessing your accounts and password protected devices.
The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) attempts to provide privacy protections for the ‘owners’ of digital assets, as well as provide protections to the ‘custodians,’ such as corporations who make, store, or provide digital assets. At the same time RUFADAA grants fiduciaries certain powers to manage digital assets. The Uniform Law Commission (ULC) summarized RUFADAA by stating, “this act extends the traditional power of a fiduciary to manage tangible property to include management of a person’s digital assets. The act allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic communications such as email, text messages, and social media accounts unless the original user consented in a will, trust, power of attorney or other record.”
Key Highlights of the Legislation
- The custodian of the digital asset will be granted immunity from any liability action for all actions they take in accordance with RUFADAA.
- Custodians may not provide access to deleted assets or joint accounts.
- The fiduciary standards of digital assets will be the same as they are for tangible assets.
- An executor does not have authority over the content of your electronic communications (private email, tweets, chats), unless you explicitly consented to disclosure.
- An executor can get access to other types of digital assets, but now they must petition the court and explain why the asset is needed to wrap up the estate.
- A digital asset that is considered a ‘private communication’ will not be released unless you have specifically granted access.
- The statute provides default rules for the four common types of fiduciary roles: an agent operating under a power of attorney, an executor, a trustee and a conservator.
Grant your Executor or Agent Access to Digital Assets
If you want the executor or attorney-in-fact to have access to your digital assets, you MUST clearly provide such statements in your last will and testament. Additionally, leave detailed instructions about how to access your accounts and files. This ensures the executor can legally close out your digital legacy. If the instructions are not explicit your fiduciary will go through an extensive legal process of invoking RUFADAA.
How to Leave Permission and Clear Instructions
Write a letter.
A simple letter expressing your permission will suffice. As always, please have a legal professional review or draft this letter.
Include Access Information and Instructions.
Leave specific instructions on how to access your accounts. Include websites or devices needed, as well as usernames and passwords.
- Instruct the executor what to do with each account.
- As an example: Do you want your stored photos to be shared with family, or social media accounts deleted, etc?
Keep the letter with other important documents like your will, health care directive or insurance information. The executor may need to retrieve this information quickly, so make sure it’s easily accessible and inform your executor where to find it.
Keep your letter up to date! As account information changes, update the letter so that your executor has the correct information when the time comes.
Need More Privacy
If you want to limit access to your digital assets, consult a lawyer to discuss ways of protecting your privacy. An attorney can craft a provision for your will that explicitly prohibits a personal representative from accessing certain assets. An attorney could also help you set up a trust that appoints a trusted person to guard the assets on your behalf.
Prior to adding digital account information to HereToday, please review our Terms of Service and the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). RUFADAA is a law influenced and structured by the Uniform Law Commission (ULC) to provide fiduciaries with legal guidance to managing the digital assets of deceased or incapacitated people.
Disclaimer. HereToday is not a legal service. This content should not be taken as legal advice. Before drafting any legal document, please consult an attorney.