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If you did your estate plan more than a year ago, chances are you did not leave any instructions for handling your digital assets. Here's a summary of what you need to know.
The Revised Uniform Fiduciary Access to Digital Assets Act (UFADAA) took effect in California last year The UFADAA allows you to give an executor, administrator, trustee, power of attorney agent, or court-appointed conservator authority over your digital assets upon death or incapacitation. This authority includes the ability to access, modify, and delete files (photos and music) and online accounts such as social media, e-commerce, file sharing, banking, and email accounts. The UFADAA also allows you to prohibit certain individuals from accessing certain accounts after your death or upon incapacitation.
If you designate an authorized individual to access, modify, or delete an account after death within the platform, the designation trumps your estate planning documents. For example, Facebook offers a “legacy tool” for users to identify a person who has the authority to manage a Facebook account after the user’s death. If an online platform does not permit this or if you do not identify an authorized individual, the UFADAA permits you to give this authority to individuals identified in your estate planning documents. Consequently, your Will or Trust can give another individual authority to access to your digital assets. Similarly, your Power of Attorney and can give another individual authority to manage your digital assets upon incapacitation. If you pass away without a Will or Trust, or your estate planning documents were silent on digital assets, the platform’s Terms of Service will control.
Provisions addressing digital assets should always be included in your Will, Trust, and Power of Attorney to ensure your wishes will are carried out in compliance with the UFADAA. However, because people can (and do) create or change online accounts all the time, individuals should always inventory their digital assets using a spreadsheet and/or online vault. There are various legal technology services available that can help manage your online accounts (including password changes).
Individuals should also consider designating an individual to access and manage their digital devices (phones, tablets, computers, etc.) in their estate planning documents. The UFADAA specifically does not require the sharing of passwords or decrypting of devices by platforms and custodians of digital assets. Oftentimes, digital assets may be held in a digital device that is otherwise inaccessible, and providing an individual access to those devices will ensure those assets are disposed of in accordance with your wishes.