by Morgan Wiener
You may have previously read on this blog about digital assets, the impact they have on the administration of trusts and estates, the need for fiduciaries to access digital assets, and the privacy concerns that come along with such access. In order to address these issues, Colorado has recently enacted the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”). This new act will be effective as of August 10, 2016 and can be found at C.R.S. § 15-1-1501 et seq.
RUFADAA addresses these issues by setting forth the circumstances under which a fiduciary is allowed (or may gain) access to digital assets, while also taking into account the privacy interests of the testator, settlor, protected person, etc. (for ease of reference, I will generally refer to these people as the “Person”). RUFADAA also takes into account the interests of the custodians of the digital assets; a custodian is defined as the person or entity that carries, maintains, processes, receives, or stores a digital asset of a user and includes entities such as banks, Google, Yahoo, and Facebook. RUFADAA places paramount importance on the intent of the Person and limits a fiduciary’s automatic access to the content of the Person’s digital communications absent their consent or a court order.
One of the main ways in which RUFADAA incorporates the Person’s intent into the rules governing the fiduciary’s access is through the concept of “online tools.” An online tool is a tool provided by a custodian that allows the Person to give directions for the disclosure or non-disclosure of his digital assets to a third person. Examples of online tools include Google’s inactive account manager and Facebook’s legacy contact. Google’s inactive account manager allows the account holder to designate a “trusted contact” who will receive notification and information about accessing the account when the account has been inactive for a certain amount of time. Similarly, Facebook allows an account holder to designate a legacy contact who will manage the Facebook account after it has been memorialized due to the account holder’s death. RUFADAA provides that the Person may use an online tool to direct the custodian to disclose certain information to a designated recipient and, under certain circumstances, this direction may override a contrary direction provided by the Person in his will, trust, power of attorney, etc.
Absent a designation in an online tool, RUFADAA provides defaults for what parts of the Person’s digital assets a fiduciary may access and how a fiduciary may gain access to additional information. Even with these default provisions, it is important to remember that, as with many defaults in the Probate Code, a contrary direction in the the governing instrument controls. A brief summary of these default provisions follows:
- Personal representative. Unless the decedent consented, a personal representative may not access the content of the decedent’s electronic communications unless he obtains a court order finding the disclosure of the content of the communications is reasonable necessary for the administration of the estate. However, even absent express consent, a personal representative may access a decedent’s other digital assets, including the catalogue of the decedent’s electronic communications. The catalog of electronic communications is defined as “information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person.”
- Trustee. When the trustee is the original user or account holder for the digital asset, the trustee may access all digital assets, including the content of electronic communications. When the trustee is not the original user or account holder, he may access the content of electronic communications if it is specifically authorized by the trust. Even absent express consent, the trustee may access the trust’s other digital assets, including the catalogue of electronic communications.
- Conservator. A conservator may access the digital assets of the protected person only pursuant to a court order that was entered after the opportunity for a hearing.
- Agent under a power of attorney. An agent under a power of attorney may access the content of the principal’s electronic communications to the extent authorized by the power of attorney. An agent with specific authority over the principal’s digital assets or with general authority to act on behalf of the principal may access the principal’s other digital assets, including the catalogue of electronic communications.
Finally, it is important to note that RUFADAA does nothing to change a fiduciary’s duties with respect to his actions on behalf of the Person. Instead, RUFADAA provides that a fiduciary’s duties with respect to managing the Person’s tangible personal property also apply with respect to managing the Person’s digital assets. These duties include the duty of care, duty of loyalty, and duty of confidentiality.
For more information on RUFADAA, see the complete copy of the act that is provided here.