In addition to posing significant emotional and life challenges, a death almost always gives rise to a number of practical and legal tasks to be attended to by family and friends of the deceased. Traditional assets and obligations are typically dealt with through the long-developed areas of law of trusts and estates. Legal means to appropriately handle digital assets of a decedent are, of course, not fully developed. Yet digital assets are of ever-increasing importance as most of an individual’s records are stored – not in a closet or safe – but within password-protected online or electronic accounts. Important questions arise as to how those accounts should be handled after death, including who should have access to and who may exercise control over those accounts. Even access to information associated with “traditional” accounts increasingly requires access to at least a decedent’s email account.
The National Conference of Commissioners on Uniform State Laws has attempted to address the issues in the form of a uniform law, recently revised as the Revised Uniform Fiduciary Access to Digital Access Act (Revised UFADAA; a comparison chart reflecting differences between the Revised UFADAA and the original is available here). The Revised UFADAA provides an authorization framework for legal fiduciaries and data custodians (a provider that actually maintains or stores digital assets of a decedent pursuant to an agreement) to address the needs of fiduciaries to access online accounts, gather assets, and protect the wishes of the deceased and the interests of the deceased’s beneficiaries. This framework is centered on consents and directions provided by a decedent during life. Consistent with the federal Stored Communications Act, the Revised UFADAA imposes heightened requirements for disclosure of or provision of access to the contents of electronic communications.
The Revised UFADAA sets forth various procedures and protections for custodians, including methods for seeking to limit required disclosures, immunity for good faith compliance and provision for recovery of reasonable administrative costs.
The law has been enacted or introduced in the state legislatures of 28 different states as of the time of this writing. Individuals managing the estate of someone close to them, or seeking to simplify matters for their own beneficiaries may wish to determine the status of UFADAA in their home state and take appropriate measures to clarify their wishes regarding the post-death treatment of digital assets.