New York Estate Planning & Elder Law Blog
Since ratification of the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) in 2015, the guidelines for third-party access of digital assets of deceased or incapacitated parties has been refined to include guidelines to estate fiduciaries (i.e. trustees, executors, or other agents) and court-appointed conservators or guardians of protected persons’ estates with power of attorney appointment to gain lawful access to a named individual’s digital accounts. RUFADAA provides instructions for third-party treatment of digital assets in a 3-tier system:
Tier 1: Custodian Online Tool
RUFADAA provisions allow for custodian online tool administration of account management after an individual with designated user access credentials is deceased or incapacitation. For example, Facebook Legacy Contact and Google Inactive Account Manager offer terms of service agreement instructions for account modification or deletion where
“an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.”
According digital power-of-attorney where applicable, RUFADAA recognizes service providers as legal “custodians” of user accounts. Under the law, custodian online tools override all other rights to an account, including default Terms of Service; and any existing Will, testamentary document, trust, or power of attorney. “Attorney-in-fact” applies in cases where the custodial process online is administered by an individual different than the one named on an account, or their representative (i.e. estate executor).
Tier 2: Legal Documents
In the circumstance where the website where a decedent or incapacitated party’s account is held does not offer an online tool – or the user opts not to use the custodial tool – RUFADAA allows for an express directive in a will, testamentary document, or named power of attorney representation. A named representative acts on a user’s behalf to modify or close a digital account. Legal documents expressly granting an estate fiduciary access to any or all digital accounts under a decedent or incapacitated party’s name, can also restrict access.
Executor access to digital assets is implied under RUFADAA unless otherwise stipulated in legal documentation. An online custodian must also provide an executor with record of user communications if requested. By leaving instructions for digital account access along with a named representative in a will or other end-of-life documentation, the account modification or closure and any transfer of those assets will proceed without probate.
Tier 3: Terms of Service
If no custodial online tool exists, and an account user has provided no express instructions, the Terms of Service agreement of the custodian will dictate access to those assets. Most Terms of Service agreements alleviate online custodians of liability after an account user has died. Premature termination of a digital account part of an estate can lead to complications – both financial and nonfinancial.
Ask a licensed attorney specializing in estate planning and matters of trust probate litigation about the proper administration of digital assets before death.
Estate Law Attorney Practice
Ettinger Law Firm is a licensed New York attorney practice specializing in estate planning and probate litigation. Contact Ettinger Law Firm to schedule a consultation about an estate planning matter involving digital accounts.
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