California Estate Planning for Digital Assets
What happens to your Facebook account when you die? What about any money you left in your iTunes account? Or the pictures and other files you stored in Dropbox? How about your extensive collection of virtual hats in the popular online video game Team Fortress 2? (Yes, really!)
Until recently, California law didn’t provide much guidance for such “digital assets.” But in September of last year, Governor Jerry Brown signed AB-691, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), into law. AB-691 added sections 870-884 to the California Probate Code. Let’s take a quick look at what this legislation does and what it means for your estate plan.
What RUFADAA Does
Under RUFADAA, a user can authorize a custodian to disclose digital assets to a fiduciary or designated recipient. The “user” is the person who owns a digital asset before death. The “custodian” is the person—usually a company—that stores the digital asset (e.g., Facebook or Dropbox). A “fiduciary” is a trustee or personal representative, and a “designated recipient” is a person chosen by a user to administer his or her digital assets using an online tool.
An “online tool” is just one of three ways for a user to authorize disclosure of digital assets to a fiduciary or designated recipient. One example of such an online tool is Facebook’s “legacy contact” system. This system lets you name a legacy contact who can manage your account after it’s memorialized. They can also download a copy of what you shared on Facebook.
Another way to authorize disclosure is to do so in a will, trust, power of attorney, or other record. However, using this approach only lets you authorize a fiduciary to access your online assets.
Finally, a website’s terms of service might authorize access for somebody else if you die. Of course, the terms of service are usually drafted by the custodian, without any input from the user, so this doesn’t give you much control.
If an online tool lets you change your designated recipient after you first select one, then it controls who can access your digital assets held by that custodian. If you don’t use an online tool to select someone, but do authorize disclosure to a fiduciary in your will, trust, power of attorney, or other record, then that will control. Only if you do neither of those things will the terms of service control.
Importantly, RUFADAA lets you limit what your fiduciary or designated recipient can access. You don’t have to permit them to have access to all your digital assets.
What RUFADAA Means for Estate Planning
RUFADAA became effective earlier this year. When you are preparing for your first estate-planning consultation with an attorney (or preparing for a follow-up consultation, for that matter), you should catalogue your digital assets and think about how you want them handled when you die. That will allow your attorney to include appropriate instructions under RUFADAA for those assets in your estate-planning documents.
In addition, you should keep a list of the usernames and passwords for every account you’ll want your fiduciary or designated recipient to be able to access. You shouldn’t share that list with them now, but keep it safe with your will and other estate-planning documents. That way, it will be easy to find when it’s needed.