I have written previously about issues related to passing your digital assets upon your death. I am, therefore, very pleased that Arizona has now joined approximately 20 other states in enacting a version of the Revised Uniform Access to Digital Assets Act, called the Revised Fiduciary Access to Digital Assets Act. The Act has also been proposed in more than 10 additional states this year.
This law, which was supported by Facebook, Google and the Arizona Technology Council, is designed to assure that people can pass their digital assets and the authority to manage them through their wills, trusts, powers of attorney (even if written before the Act became effective) or a notarized written statement specifically directed toward their digital assets.
The law allows for 3 options regarding these assets:
- If the custodian of the digital assets, such as an on-line platform like Facebook, offers an online tool to allow its users to name another person to have access to the user’s assets, or to direct the custodian to delete them, the law states that these online instructions are legally enforceable, and take precedence over other instructions.
- If the custodian does not have an online planning tool OR if the user has chosen not to use it, then the user can give legally enforceable instructions regarding the disposition of her digital assets in a will, trust, power of attorney or other written record.
- If the user has not provided any instructions, either in an online tool or in her planning documents, then the custodian’s terms-of-service will dictate whether a fiduciary can access the digital assets. However, if the terms-of-service do not address this issue, then the new law’s default rules apply. These do not allow the user’s fiduciary, or her heirs, to access the content of the user’s private communications, but the fiduciary can access other digital assets, such as bank accounts, so that the fiduciary can manage them for the benefit of an incapacitated user or her heirs.
The act includes specific requirements for how the request to the custodian must be made and what supporting documentation is required, but, assuming the request is made properly, the custodian must comply.
Everyone should be encouraged to make provisions for their digital assets in their planning documents, while remembering that those plans would be superseded by instructions they have included in their online tools.