Providing Customized Legal Solutions Since 1979

RUFADAA!! No, I Did Not Just Sneeze, I Am Talking About the Act Governing a Fiduciary’s Access to Digital Assets

by | May 2, 2024 | Firm News

It is always a fun question to ask my clients, especially my younger clients, who they want to have access to their cell phones.  Our handheld computers have become the new diary for many, and you may not want certain people to have full access to your “diary” – I am looking at you parents of young adults! This is when becoming familiar with the legal requirements in naming a fiduciary to have access to your digital assets.

The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) governs a trustee’s, executor’s, agent under a power of attorney, and conservator’s access to a person’s digital assets.  The California Probate Code at Section 871(h) defines “Digital Asset” as an electronic record in which an individual has a right or interest, but it does not include an underlying asset or liability, unless the asset or liability is itself an electronic record.  Common examples of digital assets are electronic communications such as emails, photographs, music, online banking, social media accounts, etc.

An estate planning document – trust, will or power of attorney – can allow or prohibit the disclosure of digital assets to the fiduciary – trustee, executor or agent.  This direction can be overridden by the use of an online tool which directs the custodian (the company holding the digital asset – i.e., Facebook) to the opposite.  The online tool must allow the user to modify or delete a direction at all times.  The hierarchy of directions under RUFADAA is first the use of an online tool by the owner of the digital asset, then a direction given in a trust, will or power of attorney, and lastly the custodian’s terms-of-service agreement.

RUFADAA only provides for disclosure – the custodian’s disclosure to the fiduciary – and not access to the digital asset.  A custodian may still require a court order before it will allow a fiduciary to have access to the digital asset.  With each custodian having a different policy regarding disclosure and access, it is becoming more difficult for a fiduciary to administer digital assets.  Even if the fiduciary has the password and login information, under various federal laws (the Computer Fraud and Abuse Act and Stored Communications Act) the use of that information to access the digital asset without prior written authorization can be a federal crime.

There are companies out there who can assist with managing access to digital assets for a fee.  This includes complying with each custodian’s terms-of-service agreement to make sure it is properly completed and consistent with your intent.  At the minimum, make sure that your estate planning documents – trust, will and power of attorney – have a provision regarding digital assets.