The National Conference of State Legislatures has been working on a framework of laws that apply to the regulation and disposition of digital assets like social media accounts and emails. There are a number of states that have enacted laws addressing access to social media accounts, email, blogging, website accounts and electronically stored information upon a person's incapacity or death. Some state statutes are quite limited - electronic email only - while others are more expansive. California, however, has not yet begun any such legislative process to protect digital assets under trust and probate law.
The Uniform Law Commission describes its Revised Uniform Fiduciary Access to Digital Assets Act (2015) (UFADAA) in this way:
A fiduciary is a person appointed to manage the property of another person, subject to strict duties to act in the other person's best interest. Common types of fiduciaries include executors of a decedent's estate, trustees, conservators, and agents under a power of attorney. This act extends the traditional power of a fiduciary to manage tangible property to include management of a person's digital assets. The act allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary's access to electronic communications such as email, text messages, and social media accounts unless the original user consented in a will, trust, power of attorney, or other record.
The model act is interesting in that it puts the initial burden on the owner of the digital assets to consent to a fiduciary's access to email, text messages and social media accounts. Absent such consent, the accounts are not supposed to be accessible to the fiduciary.
The Uniform Law Commission provides a number of reasons why state legislatures should adopt the UFADAA, among them:
- Internet users have control over their digital assets.
- Privacy interests can be protected and executors.
- Holders of powers of attorney, trustees and conservators will have clear and understandable rules with regard to the accessibility and management of a decedent's digital assets.
In the meantime California estate attorneys have to use their best judgment to determine how best to ensure the integrity of a client's digital assets and create a framework for their orderly transfer to heirs through fiduciaries. There's no better time than now for our state to formulate best practices and guidelines so that trust and probate law is adapted for the digital realm. California, our nation's most populous state, awaits legislation to be passed that will address what is really a 21st Century issue. Let's get to work.