Nowadays almost everyone has digital assets whether they realize it or not. Although we do not yet have a legally-accepted definition of a digital asset, it is generally known as content owned by an individual that is stored in digital form. For instance, many people keep family photos and other personal information on Shutterfly, Instagram, Facebook, and other similar accounts. If you need to login to an account using a login and password then the information contained on that site is most likely a digital asset.
Before the Law
A relatively new area of law relates to these digital assets and who may have access to them once the owner is incapacitated or passes away. Up till now some companies (custodians) haven’t allowed access to anyone other than the account holder which has caused problems and confusion for an estate of a decedent. Historically different custodians have had different rules regarding who may access an account. So recently legislatures have undertaken to codify this area of law in order to remove some of the confusion and loss of personal information.
The New Law
California recently passed the Revised Uniform Fiduciary Access to Digital Assets Act which authorizes a decedent’s personal representative to access and manage digital assets and electronic communications. This new law authorizes a person to use an online tool to give directions to the custodian regarding the disclosure of those assets. The law specifies that if a person has not used an online tool to give that direction, he or she may give direction regarding the disclosure of digital assets in a will, trust, power of attorney, or other record. The new law requires the custodian to comply with a fiduciary’s request for disclosure of digital assets or to terminate an account, including when the decedent has prohibited this disclosure using the online tool. And the law makes custodians immune from liability for an act or omission done in good faith in compliance with these provisions.
Plain English
In simple terms, the person you leave in charge of your digital access now can access those assets under California law. Previously, your representative was limited to the rules of the custodian. Now, custodians may provide an online tool for you to enter the name of your personal representative or you can simply include this information in your estate planning documents.
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*This discussion is intended to provide you with general information about recent California law and does not include all of the variables in determining how your estate plan should be prepared. Before making and changes to your estate plan you should consult with your estate planning attorney to determine the best options for you and your family.