Who Will Have Access To Your Digital Assets? Are You Sure?
The Revised Uniform Fiduciary Access to Digital Assets Act, “RUFADAA”, is a law that regulates who can access digital assets on behalf of another person, which includes accessing the digital assets of a person who is deceased. In attempting to balance user privacy with the access rights of fiduciaries, RUFADAA places significant limitations on the ability of an agent to access a user’s digital assets, and defers to user’s wishes when they are available.
The law achieves its goal of standardizing the previously convoluted way in which access to digital assets is granted by, introducing a system of priority for deciding who can gain access to another person’s digital assets.
The first level of priority that RUFADAA defers to is called an online tool. An online tool is a feature built into some online platforms that allows for users to chart what will happen to their account when it has been inactive for a certain amount of time, or upon notification of the user’s death. Google and Facebook, for example, have online tools called Inactive Account Manager and Facebook Legacy Contact, respectively. These tools allow users to designate another person to whom their data will be sent or to erase their data entirely.
In the absence of an online tool, RUFADAA defers to the terms of service agreement in determining what a fiduciary may access, and when, if ever. Custodians of digital assets often have provisions within their terms of service that regulate what happens to a deceased user’s account. Apple, for instance, as of the date of this writing, provides that a user forfeits their claim to their iCloud account at death.
However, not all terms of services agreements account for what happens when their users die. When neither an online tool nor a terms of service agreement is available to govern a deceased person’s account, RUFADAA addresses how access to digital assets works for different types of fiduciaries including personal representatives, conservators, agents acting under a power of attorney, and trustees. The general rules of access for each of these categories of fiduciary are as follows:
Personal representatives may only access digital assets when the original user consented to disclosure or a court orders their disclosure. Such consent can be provided for in a will, but must be made explicit.
A conservator is someone appointed by the court to manage a living person’s assets. Before accessing a protected person’s digital assets, a conservator must be specifically authorized by the court to do so.
An agent acting under a power of attorney may access a user digital assets to the degree permitted by the user in the power of attorney form. The power of attorney form must explicitly provide for access to the principal’s digital assets.
When trustees are not original users of the account in question, they will be given access to the digital assets of the user, including the content of electronic communications, when they are authorized to do so by the trust. The trust document must explicitly provide for access to digital assets.
RUFADAA is a complicated law and ensuring that your digital assets fall into the right hands is not easy. A licensed attorney who specializes in digital assets and estate planning can help you make sure that your will, power of attorney, and/or trust contain the right provisions to direct and control your digital assets when you are unable to do so for yourself.