There is not currently any federal law regulating access to digital assets. The Revised Uniform Fiduciary Access to Digital Assets Act (UFADAA) took effect in California (California Bill AB-691) on January 1, 2017. The UFADAA allows you to give an executor, administrator, trustee, power of attorney agent, or court-appointed conservator authority over your digital assets upon death or incapacitation.
This authority includes the ability to access, modify, and delete files (photos and music) and online accounts such as social media, e-commerce, file sharing, banking, and email accounts. The UFADAA also allows you to prohibit certain individuals from accessing certain accounts after your death or upon incapacitation.
If you designate an authorized individual to access, modify, or delete an account after death within the platform, the designation trumps your estate planning documents. For example, Facebook offers a “legacy tool” for users to identify a person who has the authority to manage a Facebook account after the user’s death. If an online platform does not permit this or if you do not identify an authorized individual, the UFADAA permits you to give this authority to individuals identified in your estate planning documents. Consequently, your Will or Trust can give another individual authority to access to your digital assets. Similarly, your Power of Attorney and can give another individual authority to manage your digital assets upon incapacitation. If you pass away without a Will or Trust, or your estate planning documents were silent on digital assets, the platform’s Terms of Service will control.
Provisions addressing digital assets should always be included in your Will, Trust, and Power of Attorney to ensure your wishes will are carried out in compliance with the UFADAA. However, because people can (and do) create or change online accounts all the time, individuals should always inventory their digital assets using a spreadsheet and/or online vault. There are various legal technology services available that can help manage your online accounts (including password changes).
Individuals should also consider designating an individual to access and manage their digital devices (phones, tablets, computers, etc.) in their estate planning documents. The UFADAA specifically does not require the sharing of passwords or decrypting of devices by platforms and custodians of digital assets. Oftentimes, digital assets may be held in a digital device that is otherwise inaccessible, and providing an individual access to those devices will ensure those assets are disposed of in accordance with your wishes.
If you have any questions or concerns regarding these matters, please do not hesitate to contact the Law Offices of Tyler Q. Dahl.
Disclaimer: This material was prepared for general informational purposes only, and is not intended to create an attorney-client relationship and does not constitute legal advice. This material should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction.