The issue of “digital assets” and what happens to them after we are gone is a fairly new concern in our high-tech society. Digital assets refer to any electronic record that a person might own or control, such as social media accounts, online photos, email accounts, websites, blogs, e-commerce stores, and so forth.

When you look at it from that perspective, just about every person today has some form of digital asset that they may want to ensure that someone else can access in the event of their death or incapacity.

Unfortunately, online companies will not allow loved ones to access digital accounts after a loved one’s death or incapacity without legal documentation.

There have been countless lawsuits brought by families of deceased individuals over the past decade who simply wanted permission to access their loved one’s photos, videos, or email records. The prevailing outcome is that without a password or explicit permission, the companies cannot provide this level of access to a third-party.

As our society continues to grapple with issues surrounding digital assets, Congress has passed a law called The Revised Fiduciary Access to Digital Assets Act, otherwise known as RUFADAA, to help give more control to those managing digital estates of the recently incapacitated or deceased.

This act allows fiduciaries (executors, trustees, and agents working with a Power of Attorney) the ability to manage digital accounts owned by others, while at the same time affording the account owner a level of privacy.

RUFADAA also addresses the needs of fiduciaries to manage various digital assets, most of which we wouldn’t even think of until it’s too late, like online utility and bill pay accounts, social media, and online subscriptions.

The law has seen significant revisions since it was first introduced in 2014, as many digital providers expressed reservations over legal liabilities that could arise from fiduciaries accessing others’ private accounts.

As of now, the authority of the fiduciary over the digital assets has been narrowed and provisions were made to address privacy concerns, such as the need to gain explicit consent from a deceased or incapacitated person beforehand, an explanation from the fiduciary to the probate court about why access to digital assets is necessary, and the ability for digital service providers to limit their compliance to “reasonably necessary” assets.

California enacted RUFADAA in 2016, so again, it is still a very new law in the grand scheme of things. The best way to avoid any issues concerning your digital assets is to consult with a lawyer who can help you make a plan with your expected fiduciaries concerning your digital asset and incorporate such wishes into your legal documents.

If you would like more information about the Revised Fiduciary Access to Digital Assets Act or if you’re currently involved in a probate matter and facing issues with digital assets, please set up an appointment at one of our law offices located throughout the state of California by calling 800-244-8814.

– Robert Galliano, Attorney at Law, Copenbarger & Copenbarger, LLP