As of January 1, 2017, California has a new law (The Revised Fiduciary Access to Digital Assets Act) that allows executors and trustees to gain disclosure of a person’s digital assets after the original user’s death under certain conditions. This is a good thing because, until now, federal and state law on digital access for executors and trustees made it difficult for executors and trustees to get such disclosure without a court order. Twenty other states have passed similar legislation but, of course, as is often the case, California’s version is slightly different than the model legislation it is based on.
Attempts to pass state laws to make such disclosure easier (in California and in other states as well) ran into difficulties as laws drafted by lawyers (who wanted to make it easy for executors and trustees to gain access to digital assets simply by virtue of the fact that they were executors or trustees) ran into opposition from privacy advocates (like the ACLU) and service providers/tech companies (like Google, Facebook, and Yahoo), who wanted to protect the privacy of deceased users from such disclosure without their consent and who pointed out that any disclosure without such consent violated federal law.
To read more about the legal issues involved and how content providers are (or aren’t) providing online tools to record your consent and to get a digital inventory form that you can use to catalog your digital assets and record your passwords and usernames, download an Ebook that I wrote, Estate Planning for Digital Assets, at my website, www.lizahanks.com .
The compromise hammered out works this way. First, simply being an executor or trustee isn’t enough all by itself to gain access to a decedent’s digital assets. Instead, the executor or trustee needs to provide evidence of the decedent’s consent to disclosure, and, if necessary, get a court order that verified that consent. Like all laws, this is a compromise. This approach provides content providers and privacy advocates with what they most wanted, a requirement of prior consent before disclosure, but it also makes it easier for executors and trustees to show that you have consented to such disclosure, which in turn makes it easier for them to gain access to your digital assets without having to go to court in most cases and without having access governed only by each company’s terms of service contracts and federal law.
California’s new law now gives executors and trustees the right to receive disclosure of a decedent’s digital assets if they can show one of three things:
- The decedent gave prior consent to such disclosure using an online tool, such as Google’s Inactive Account Manager and Facebook’s Legacy Manager, to that executor or trustee.
- If an online service provider didn’t offer such a tool (and most don’t yet), or didn’t use such a tool, they need to show that the decedent gave permission to the executor or trustee for such disclosure in writing, such as that person’s will or trust (but this could be in any writing, like a letter, or an email).
- If no online tool allows disclosure, and there are no written authorizations for such disclosure, the law looks to the Terms of Service that the user signed with the service provider (those contracts you have to accept to open an account that few people read) to see if such disclosure is permitted, which, until now, they almost universally do not, without a court order.
Under California’s law, an executor or trustee can request and receive disclosure of a decedent’s digital assets held by a service provider. To do so, the executor or trustee will have to identify themselves, identify the account, and show why they have the right to such disclosure. In certain circumstances, they might still need to get a court order, but if the decedent consented prior to death to such disclosure, either by using an online tool, or leaving written permission in a will or a trust, such an order shouldn’t be necessary. Of course, this will all get worked in real life over time, but at least we now have a set of legal requirements for request and disclosure of digital assets, and this is a huge improvement over the prior uncertain state of affairs.
So, what does this mean for Californian’s who have things that they either do, or don’t, want people to have access to after their death:
- First, think about and inventory your digital assets, which could include things like your emails, photographs, writing, financial information, social media accounts, and music.
- Consider whether or not you actually want people to have access to such assets. This might not be all or nothing– you may have some things you do want to share (your music collection) and some things you definitely don’t want to share (your instagram account, your tumblr blog, your porn collection).
- Use any online tool provided to permit or deny access to such digital assets after you die.
- Update your will or trust to give permission to your executor or trustee to access digital assets, and be sure that the definition of what that terms includes reflects your wishes.