Our daily lives are becoming more enmeshed with digital data, paperless accounts, social media, and electronics with every passing day. Millions of Americans use Facebook, Instagram, and Snapchat many times a day to keep in contact with friends and family members who live across the globe. In addition to social media, an enormous amount of our daily business and financial transactions are conducted online. Most of us depend on these services to pay bills, transfer funds, and make purchases. Despite the fact we use these services almost daily, many people do not account for their digital assets in their estate plans.
In January 2017, the Revised Uniform Fiduciary Access to Digital Assets Act took effect in California. This law defines “digital asset” as “an electronic record in which an individual has a right or interest.” This means your photos on Instagram, posts on Facebook, or access to online past bank statements, for example, would all fall under the umbrella of “digital asset.” This set of laws provides that the executor of the estate will have access to these digital assets. Part of an executor’s responsibilities is to gather an inventory of all assets belonging to the decedent. However, before this law came into effect, executors sometimes encountered significant difficulties when attempting to gain access to a decedent’s online accounts. The Revised Uniform Fiduciary Access to Digital Assets Act provides that executors or other fiduciaries, such as trustees, must be given access to and control of digital assets just as they must be given access to physical, tangible property. The law does have some restrictions. A provider is not required to produce records if the production would impose a significant burden. In addition, the provider is not required to produce information that has already been deleted by the original user. Providers are not required to decrypt devices and are not required to disclose passwords. Trustees and executors must exercise the same high level of care with digital assets as they do with physical assets. They must take care to guard the property and privacy of the decedent and beneficiaries. Finally, some platforms provide a “legacy” option for their users, wherein the users can designate a particular person to be the recipient of their data from that platform. If the user makes such a designation, that will override any designation of executor or trustee made in other documents.
Let us help you with your digital assets. We are familiar with the specific issues associated with digital assets, estate planning, and probate. Call us at 818.340.4479 today for an appointment.
