Who will have authority to access or manage your digital assets after you die? Arizona, like many other states, recently passed the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which may help your executor (called a “personal representative” in Arizona) gain legal and practical access to some of your digital assets. However, under RUFADAA your personal representative’s access may be narrow, it won’t be easy to get, and for some digital assets, you will have to provide your explicit permission.
All of this means that if you want your personal representative to have access to your digital assets (or if you want to keep your digital assets private), you need to plan ahead.
Arizona’s version of RUFADAA went through the state legislature as AZ HB 2467 2016 and it was signed into law on May 11, 2016, effective date August 6, 2016. It resides in §14-13101 through §14-13118 of the Arizona Revised Statutes.
- 1 What Are Digital Assets?
- 2 Who Cares What Happens to Your Digital Assets
- 3 A Personal Representative’s Access to Digital Assets in Arizona
- 4 How to Leave Instructions About Your Digital Assets
- 5 Keep an Eye on This Issue
What Are Digital Assets?
“Digital assets” are any digital record that you own or have control over. This includes email accounts, blogs, social media accounts, financial accounts, digital files (music, photos, movies), apps, or any other online or digital account or file. Your access to these accounts or files is usually limited by the “terms of service agreement” (TOSA) that you agreed to when creating an account or buying or licensing a product online. TOSAs usually dictate what happens to your account when you die.
RUFADDA distinguishes “electronic communications” as a type of digital assets that requires stronger privacy protections. Electronic communications are communications between private parties via email, text messages, instant messages, or other private service. A communication sent to a limited group of people would be subject to the stronger protections, but public communication would not. Under RUFADAA, you must give explicit permission for your personal representative to have access to your electronic communications.
Learn more: What Are Digital Assets?
Who Cares What Happens to Your Digital Assets
Here are three reasons to care about what will happen to your digital assets after you die.
- Your online presence will continue after your death. If nobody manages your digital assets after you die, most accounts and files will just remain untouched until the company that manages them terminates the account.
- You may have wishes about what happens to your digital assets after your death. Consider your email accounts, photos stored online, social media accounts, merchant accounts, financial accounts, subscriptions, and other digital assets. Do you want to have a say about what happens to them? Would your friends and family like to have your photos? Should your blog be transferred to another writer? Will your personal representative know how to access income you’ve earned online? Do you want certain email accounts deleted so that no one can see them? If you have any post-mortem wishes for any of your online accounts or files, you need to make a plan.
- Your personal representative will need access to your digital assets after your death. As a practical matter, the person who wraps up your estate will almost certainly need access to some of your digital assets. He or she will need to get information about bank accounts, get contacts out of your email account, notify your online communities about your death, close your social media accounts, pay final bills, or many other tasks. Without a plan—including express permission to access your digital assets, information about how to access your digital assets, and detailed instructions about what to do with them, it will be much more difficult for your personal representative to wrap up your affairs. Read more about Why Your Personal Representative Needs Access to Your Digital Assets.
You can address each of these issues by making a plan for your digital assets.
A Personal Representative’s Access to Digital Assets in Arizona
In Arizona, your personal representative’s ability to access your digital assets depends in part on whether you’ve made a plan.
If You Don’t Make a Plan for your Digital Assets
If you don’t make a plan giving permission for someone to access your digital assets, your personal representative can still ask for access under RUFADAA. But the process will be difficult with no guarantee of success.
Under RUFADAA, your personal representative will have to make a formal written request (including a certified death certificate) to the “custodian” for each asset that he or she wants to access. The custodian is the company that owns or controls the account or file.
The custodian may also ask for:
- an affidavit (or a court order) stating that disclosure of the digital assets are reasonably necessary, and
- evidence (or a court order) linking you to the account.
Each of these requests will take time and will likely be met with resistance from the custodians—both because it costs them time and money to fulfill such requests, and also because they need to carefully comply with privacy laws.
- RUFADAA also gives custodians leeway to:
- Charge a fee for supplying the disclosures.
- Refuse to comply if they claim (to the probate court) that complying with the request would be too much of a burden.
- Limit the disclosure to only those digital assets that are directly related to wrapping up your estate.
- Restrict access per the terms of service agreement – often this means that the custodian has the right (but no obligation) to terminate and delete your account when you die.
Further, RUFADAA requires explicit permission (either through the custodian’s online tool or your will) to grant access to your “electronic communications.” This means that if you did not give your custodian explicit permission to access your electronic communications (see definition above), your custodian cannot grant a request to disclose the content of your personal email, non-public tweets, or any other private communication. However, they are permitted—even without explicit permission—to provide a “catalog” (not content) of such communications.
In sum, if you do not make a plan giving your personal representative authority to access your digital assets, it will be very difficult for your personal representative to get access to your digital assets using RUFADAA.
That said, it won’t be impossible—so, if you don’t want your personal representative to access your digital assets, not making a plan gives you no assurance that your digital assets will remain private. Whether or not you want your personal representative to have access to your digital assets, planning ahead is the best way to have your wishes met.
If You Make a Plan for Your Digital Assets
Leaving a plan for your digital assets makes it much more likely that your personal representative will be able to access your accounts and files, and it also gives you a chance to give instructions to your personal representative about how to access them and what to do with them.
In your will, you can give your personal representative a range of permission—from very broad permission to restrictive permission that limits which accounts or files your personal representative can access. (See below.)
Importantly, if you give your personal representative permission to access your digital assets, this permission trumps the custodian’s terms of service agreement (TOSA). This alone will make your personal representative’s job easier because the custodian won’t be able to block requests for access based on the TOSA.
However even with explicit permission, if your personal representative must ask the custodian for access using RUFADAA, the law requires him or her to go through the difficult and uncertain process described above. In other words, while giving explicit permission to your personal representative is an important step, it is no guarantee that your permission will result in your personal representative actually getting the access you want him or her to have.
One way around this problem is to provide your personal representative information about how to access your files and accounts. This way, your personal representative can access your digital assets immediately and without hassle. See below.
How to Leave Instructions About Your Digital Assets
If you want your personal representative to have access to your digital assets, then you need to make a plan. If you don’t want your personal representative to have access to your digital assets, then you also need to make a plan.
If You Want to Give Permission
The only way to be sure that anyone will be able to get into your accounts after you die is to very clearly leave instructions and access information for the person who will be wrapping up your affairs. Leave a list of your accounts with user names and passwords and explain what you want done with each one. That way, your personal representative won’t have to go through the RUFADAA process for each custodian. Instead, he or she will be able to immediately access your accounts.
Leave this information in a letter to be found after you die. Just keep the letter in a secure place, make sure that your personal representative knows where to find it, and remember to keep it up to date.
If You Want to Restrict Access
If you don’t want your personal representative to have access to your digital assets, or if there are certain assets you want to keep private, make this clear in your will and in your instructional letter. Without a clear directive, your personal representative may claim that he or she needs access to your digital assets in order to wrap up your estate.
You can strengthen the difficulty of accessing certain accounts by making your account names and passwords difficult to guess, so that even someone who knows you well would be stumped. If you want to further ensure your privacy after your death, see a lawyer for help. An attorney may be able to craft a provision for your will that explicitly prohibits your personal representative from accessing certain assets. Or the attorney could help you set up a trust that appoints a trusted person to guard the assets on your behalf.
Keep an Eye on This Issue
This is a new and changing area of the probate law. And although the letter of the law is now settled in Arizona (RUFADAA), the practical mechanics and processes for getting or restricting access to digital assets are not. For example, will custodians willingly comply with standard requests for access, or will they do everything they can to avoid compliance? Will access to digital assets under RUFADAA be broad enough for personal representatives to get what they need to wrap up estates? Or will more protections be required to ensure that personal representatives don’t take advantage of their access? It may take a few years for the practical aspects of this law to settle out.