In 2014, the Uniform Law Commission, a group of attorneys tasked with drafting model legislation, addressed the limited legislative response by releasing the Uniform Fiduciary Access to Digital Assets Act (UFADAA). Its purpose was to “vest fiduciaries with the authority to access, control or copy digital assets and accounts.” The goal was “to remove barriers to a fiduciary’s access to electronic records and to leave unaffected other law, such as fiduciary, probate, trust, banking, investment, securities and agency law.” 

UFADAA created unique rules for four different types of fiduciaries: personal representatives or executors, conservators, attorneys-in-fact and trustees. Access to digital assets was generally permitted to all fiduciaries, although the path to achieving access differed slightly from one to another.

More than 27 states were on their way to adopting UFADAA rules shortly after the model legislation was issued, but the efforts ran into opposition from the technology and Internet industries, which felt the proposed laws violated the privacy rights of consumers and improperly overrode the industry’s terms-of-service agreements. Industry groups created their own alternative legislation that greatly restricts fiduciary right of access.

In response to the pushback by industry, the Uniform Law Commission revised its model last year. In the 2014 version, a personal representative’s access to digital communications and other digital assets was permitted unless the decedent opted out. Under the 2015 version, however, access to digital communications is not permitted unless the decedent opts in and consents to disclosure before death. Thus, if a person dies without a will, no access will be granted. Access to other digital assets is permitted unless the decedent opts out. Attorneys-in-fact, conservators and trustees can still access digital communications and other digital assets, but they face restrictions. The custodians of the assets may, in many instances, require a court order before granting access. 

Under the 2014 version of the act, boilerplate agreements with a digital service provider limiting a fiduciary’s access to a decedent’s digital assets or accounts were made void by law as against public policy. Under the 2015 version, however, a user’s direction prevails over the terms-of-service contract if the direction can be modified or deleted at all times. A user’s direction in a will, trust or power of attorney also prevails over the boilerplate, but if the user provides no direction, the boilerplate provisions of a terms-of-service contract will prevail. 

Although we do not know how many states will adopt the UFADAA or what form the laws may take, the message is clear: Given the importance of digital assets in everyday living, it is imperative to think through what you want to have happen to your digital assets after your death. At the very least, clients need to communicate their wishes to an estate planner so that their estate planning documents can memorialize their directives. These instructions should include what information should be deleted or destroyed after death.

Logins and Passwords

In the face of all the uncertainties in the law, it may still be best for clients to avoid these issues altogether by giving their fiduciaries easy access to their login information and passwords. This, of course, presents practical problems regarding the storage and format of this information and how to keep it updated and safe. Some websites provide online password storage services, but this solution may be risky since the possibility exists that website security may be compromised. There are also a number of so-called “afterlife management companies” that offer storage and post-mortem services. Unfortunately, the staying power of these services is still in doubt. For example, Legacy Locker, where customers saved online account information and designated beneficiaries for each account, was acquired by PasswordBox, which had a different focus but continued to include Legacy Locker features. But now PasswordBox has been acquired by Intel and the future of the Legacy Locker features under Intel’s ownership is uncertain. 

Until other solutions emerge and mature, self-management may be a client’s best option for passing on digital assets. This could be as simple as gathering all login and digital asset information, storing it on a thumb drive and putting the drive in a safe place that is accessible to fiduciaries if the client passes on.

Marjorie Suisman practices in the trusts and estates area at the law firm Davis, Malm & D’Agostine in Boston. She can be reached at [email protected].

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