California has enacted the Revised Uniform Fiduciary Access to Digital Assets* Act (RUFADAA), effective January 1, 2017.
Prior to RUFAADA, use of another person's username and password to access the user's digital assets would violate most Terms of Service Agreements between the user and custodian that holds the assets for the user and likely would violate federal and state laws. (Facebook, Google, and GoDaddy are examples of custodians.) This posed a problem for executors and successor trustees charged with collecting the assets of a decedent.
Under RUFADAA, a user may allow or prohibit the disclosure of some or all of the user’s digital assets in a will or trust, or by an on-line tool provided by the custodian. Grant or denial of access in an on-line tool takes precedence over a written grant or denial.
An executor or successor trustee with access to digital assets can collect, distribute, or terminate accounts if granted broad access.
As digital assets become more common and more valuable, I expect digital asset provisions consistent with RUFADAA will become commonplace in estate plans.
*“Digital asset” means an electronic record in which an individual has a right or interest. The term “digital asset” does not include an underlying asset or liability, unless the asset or liability is itself an electronic record.