870-884: Revised Uniform Fiduciary Access to Digital Assets Act
As our lives become increasingly digital, questions about what happens to our online accounts and data after death or during incapacity have become more pressing. In response, California adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), codified in Part 20 of the Probate Code (§§ 870–884). This law provides a legal framework for fiduciaries to access and manage digital assets, while respecting users’ privacy rights and service providers’ terms of use. A fiduciary could be an executor, trustee, or agent under power of attorney.
871–872: What Are Digital Assets?
A digital asset refers to any electronic record, such as emails, social media accounts, cloud-stored photos, cryptocurrency wallets, or subscription services, in which a person holds a right or interest. However, the law clarifies that digital assets do not include the underlying physical item or financial asset unless that item itself is a digital record. For example, cryptocurrency is a digital asset; the device it’s stored on is not.
This part applies to personal representatives, trustees, agents under power of attorney, and conservators acting before or after January 1, 2017 (or January 1, 2025, for powers of attorney and conservatorships), as long as the user resided in California.
873–874: How Consent Is Given
Consent to disclose digital assets can be provided in two ways:
- Online Tools: Some service providers offer separate tools that let users choose who can access their digital assets after death. As long as the user can change or cancel these instructions at any time, then those directions will legally override anything written in a will, trust, or power of attorney.
- Traditional Documents: In the absence of an online tool, the user may authorize or restrict access to digital assets in estate planning documents like a will, trust, or power of attorney.
Either method overrides conflicting provisions in a provider’s terms-of-service agreement.
However, users cannot grant fiduciaries rights beyond what they themselves had and nothing in this section alters service providers’ rights or obligations under existing agreements unless specifically authorized.
875–879.3: How and What Custodians Must Disclose
Digital assets fall into two categories: content (the substance of communications) and catalogue data (metadata like dates and recipients). Accessing content generally requires stronger proof of consent.
Custodians may respond to fiduciary requests by:
- Giving full or partial access,
- Providing read-only copies,
- Or denying access if it poses an undue burden.
Requests must include key documents like:
- A written request,
- Proof of authority (letters, court orders, power of attorney),
- Death certificates (if applicable),
- And possibly account identifiers.
Different rules apply based on whether the request is made by a personal representative, trustee, agent, or conservator, and whether it seeks content or catalogue information.
880: Fiduciary Duties and Limitations
Fiduciaries managing digital assets are held to the same duties as those managing tangible property: care, loyalty, and confidentiality. Their authority is subject to the scope of their appointment, the service provider’s terms of service, and laws like copyright and computer access statutes.
They may not impersonate the user or access protected accounts if doing so violates privacy or federal law. However, they may be considered authorized users for specific legal purposes if acting within their duties.
881–884: Enforcement, Compliance, and Legal Safeguards
Custodians must respond to valid requests within 60 days. If they fail to comply, the fiduciary can petition the court. Providers may notify the user (if living) and may deny access if there’s evidence of other lawful activity on the account after death.
Service providers acting in good faith are immune from liability, unless they act with gross negligence or willful misconduct. This part also clarifies that it does not expand any licensing rights or infringe on federal digital signature laws.
If any provision is found invalid, the rest of the law still stands.
Key Takeaways
- Digital Assets Include More Than Just Emails: They cover any electronic records like photos in the cloud, cryptocurrency, or digital subscriptions, but not the underlying physical or financial property unless it too is digital.
- User Intent Comes First: If a user provided directions through an online tool (like Google’s Inactive Account Manager), those instructions override what’s written in a will or trust.
- Fiduciaries Need Legal Authority: Executors, trustees, agents, or conservators must present specific documentation, such as court orders, death certificates, and powers of attorney, to gain access.
- Content vs. Metadata Matters: Getting access to the actual messages (content) requires more proof than accessing a list of contacts or dates (catalogue).
- Service Providers Have Discretion and Protections: Custodians may limit access, charge reasonable fees, and are legally shielded from liability if they act in good faith.
- Privacy and Federal Law Still Apply: Disclosure must not violate laws like the Stored Communications Act. Even with consent, certain data may remain protected.
The digital age has reshaped estate planning, making it essential to consider online accounts and digital assets. California’s Revised Uniform Fiduciary Access to Digital Assets Act ensures that fiduciaries have a clear legal path to access and manage these assets while honoring a user’s privacy and intent.
