Many people activate online accounts or have digital assets (e.g. widgets, flyer miles, online accounts, bitcoins, Facebook, Twitter, LinkedIn, Snapchat, PayPal, Google Wallet, Amazon, eBay, Robinhood, online bank accounts, YouTube account that generates revenue, Google+, Yahoo, etc.).
But what happens to these assets when an individual dies or becomes incapacitated?
Until very recently, the asset was typically locked and access denied. The only way to obtain access was:
- Through court order (typically expensive and time consuming)
- By logging on as the individual (requires knowing password and arguably not legal)
- By being on a contact list on a legacy or inactive account (very few online entities actually have an online system of succession rights).
Last Friday (September 30, 2016), Governor Cuomo signed into law the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). Thanks to RUFADAA, an individual may now authorize their fiduciary (be it an authorized representative, power of attorney, executor, or trustee) certain rights and abilities to access that individual’s “digital asset(s).” (A “digital asset” is an electronic record in which an individual has a right or interest.)
Granting access to one’s representative can be done by either specifying who can have access upon death or incapacity (i) directly on the website (e.g. Google Inactive Manager or Facebook Legacy Account) or (ii) in estate planning documents (Will, Trust, Power of Attorney, Authorization and Consent for Release of Electronically Stored Material).
It is particularly important to have the appropriate language in estate planning documents because many websites or online companies do not have pages, which will allow an individual to insert their succession rights. Indeed, online tools are sparse. If a website or online asset does not have an online tool that allows an individual to set forth the amount of access to authorize a fiduciary, then the clauses in the individual’s estate planning documents will govern.
Most digital custodians only have terms of service agreements. Therefore, appropriate clauses in your estate planning documents to authorize your fiduciary access to your digital assets are both simple to achieve and important to have.
Consult your estate planning attorney for more details on appropriate estate planning clauses in light of RUFADAA.
Additional resources provided by the author
For more information, please contact estate planning attorney Regina Kiperman:
Or visit her at her new location:
80 Maiden Lane
New York, NY 10038
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