The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) is a law developed primarily by the Uniform Law Commission (ULC) to provide fiduciaries (like executors and attorneys-in-fact) with a legal path to managing the digital assets of deceased or incapacitated people. The legal experts at the ULC wrote the law as a guideline for states to consider and
adopt. Most states have either enacted the law or are in process of doing so.
RUFADAA gives fiduciaries certain powers to manage digital assets, but it also attempts to provide some privacy protections for the “owners” of the digital assets, as well as legal protections for “custodians” (the businesses who make, store, or provide digital assets.) Balancing the interests of
the fiduciary, the owner, and the custodian was a challenge, and it took few tries to draft a law that minimally satisfied all parties.
The Problem of Digital Assets
These days, most people use digital assets without even thinking about it — to keep in touch, pay bills, manage subscriptions, store photos, and more. Until recently, very few laws helped to determine who could access these files and accounts if the user became incapacitated or died. If the
deceased or incapacitated person wanted any of their digital assets to be deleted, modified, or distributed to loved ones, it was difficult to discern who would have a legal right to access them. And unless the person provided usernames and passwords, the fiduciary would have no ability to access them. As a result, digital assets would often be deleted by the company that controls them, or they would just continue to linger on the Internet or on devices long after the person’s death untouchable by family and friends. This hole in the law caused heartache for families who wanted
to collect cherished items from their loved one’s online legacy, and it caused headaches for the person charged with wrapping up the estate. Delays, frustrations, and sometimes the loss of valuable items or information were the norm. In 2012, the Uniform Law Commission began to find a solution to this problem.
UFADAA – The First Attempt
The original Uniform Fiduciary Access to Digital Access Act (UFADAA) was completed in 2014.The drafters of UFADAA thought that the best way to provide executors and agents with access to a decedent’s or principal’s digital assets was to mimic the access that they would have to
traditional property. In other words, they wanted to treat digital assets like traditional assets the owners could decide what would happen to them and the fiduciaries could have control of them when the owner died or became incapacitated.
Under UFADAA, after a person was appointed executor (called personal representative in many states), he or she would have the same right to access the deceased person’s accounts as the deceased person had during life. And if the executor did not have needed login or password information, he or she could ask the company for access and the company would have to comply. Ideally, this approach would have given executors the access they need to wrap up the estate including passing on photos, archiving emails, deleting or modifying social media accounts, paying final bills through
bill pay, and canceling subscriptions.
This version of the law met with strong opposition from technology companies as well as from privacy advocacy groups, like the ACLU. They argued that providing executors the authority to access all of a deceased person’s digital assets would :
– invade the deceased person’s privacy in ways that they would not have imagined or wanted
– raise liability concerns for the companies who promised to keep the accounts secure
– infringe on the privacy of third parties whose communications or information might be exposed to
– the executor miscategorize digital property, which is substantially different than traditional assets
-in the hands of an executor, and create conflicts with the privacy provisions in federal law.
The technology companies argued that elements of UFADAA were contrary to federal privacy laws and state and federal computer fraud laws, forcing companies to violate one law while complying with another. They also argued against UFADAA overwriting the terms of service agreements
(TOSAs) that their customers accept when opening new digital assets accounts. Most TOSAs make digital assets non-transferable and put strong restrictions on who can access accounts. UFADAA would have given fiduciaries blanket access to the decedent’s or principal’s records, even if they contradicted the TOSA.
Further, UFADAA’s approach of treating digital assets like traditional assets raised concerns about personal privacy. Privacy advocacy groups questioned whether people had the same privacy expectations for their digital assets as for their traditional assets. For example, you might understand that your executor will be able to access all of the photos and letters in your desk drawers. But do you expect (and would you want) your executor to be able to access every email you’ve ever written
or every photo that you store online?
In 2015, state law makers proposed UFADAA in more than half of the U.S. states, but under pressure and concerns of the opposition, only one state enacted a version of the law (Delaware). The ULC went back to the drawing board.
UFADAA Revised (RUFADAA)
The revised law greatly reduces the authority of an executor to access digital assets. Here are some of the key changes:
– An executor no longer has authority over the content of electronic communications (private email, tweets, chats), unless the deceased person explicitly consented to disclosure.
-An executor can get access to other types of digital assets, but now he or she must petition the court and explain why the asset is needed to wrap up the estate.
– If a fiduciary does not have explicit permission through a will, trust, or power of attorney, custodians can look to the terms-of service agreements to determine whether to comply with requests for access to a deceased person’s account.
– Custodians may: Request court orders; Limit their compliance by providing access only to assets that are “reasonably necessary” for wrapping up the estate; Charge fees to comply with requests for access; Refuse unduly burdensome requests.
-Custodians may not provide access to deleted assets or joint accounts.
-It now appears that RUFADAA will be enacted by most states. You can track the progress of RUFADAA on the website of the Uniform Laws Commission. Although most lawyers, tech companies, and regular people who have digital assets will be glad to have some guidance about a fiduciary’s access to digital assets at death or incapacity, the law is still new and in practice,
challenges seem inevitable.
Don’t Rely On the Law
You should make a plan for your digital assets, even if your state has passed RUFADAA.
If you want your executor or agent to have access:
If you want your executor or attorney-in-fact to have access to your digital assets, you should make that clear in your will or power of attorney.
However, even if you do provide this permission, it will be a challenge and a headache for your fiduciary needs to go through the legal process of invoking RUFADAA to get access to your digital assets. Your fiduciary will have to provide each company with a slew of documents (possibly
including court orders) and the fiduciary will likely get only the narrowest access possibly, just what is needed to wrap up the estate.
If you want your executor to have maximum access to your digital assets (and not everyone does), go beyond giving permission in your will or power of attorney. In addition, leave your executor or agent information and instructions about how to access your accounts and files. That way, your executor will have the same ability to access your accounts as you have. This is the easiest and most sure way to make sure that your executor can wrap up your digital legacy.
Write a letter or note. Nothing fancy needed. Just write a letter by hand or on your computer. Do not include this information in your will which will become a public document.
Include access information and instructions. Leave very specific instructions about how to access your accounts. Include websites or devices needed, as well as usernames and passwords. Also tell
your executor what to do with each account. Do you want your stored photos to be shared with family, your twitter account deleted, your blog to be archived and saved? Be as clear and thorough as possible.
Secure your letter in a safe place. Keep your letter with your other important documents like your will, health care directive or insurance information. Your executor may need this information soon
after your death, so make sure it’s easily accessible and make sure to tell your executor where to find it.
Keep your letter up to date. As account information changes, update your letter so that your executor has the correct information when the time comes.
If you want more privacy:
If you don’t want anyone accessing your digital assets when you die or become incapacitated, see a lawyer to discuss ways to protect your privacy. An attorney may be able to craft a provision for your will that explicitly prohibits your personal representative from accessing certain assets. Or the
attorney could help you set up a trust that appoints a trusted person to guard the assets on your