Do you know all the online access codes to the bank accounts you share with your spouse? Do you know who could access your parent’s bank accounts should they pass away? Will you be able to access the social media accounts and photo galleries of your loved ones if the unthinkable happens? Washington State’s adoption in June 2016 of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADA) provides uniformity of access (or limitation of access) to fiduciaries charged with the responsibility of understanding, maintaining, and/or managing of a person’s assets. Planning for your digital assets should be a part of every well-drafted estate plan, and with the enactment of the RUFADA estate planners feel more confident that the estate plan’s digital asset provisions will be followed.
Washington estate planning professionals help their clients choose a fiduciary that will be responsible for the administration of their estate after their deaths. These people are called personal representatives, and it is their job to oversee a deceased person’s money and property after death until it is disbursed to beneficiaries. Digital assets include things like electronic information, online banking, online investment accounts, photo galleries, email accounts, and social media accounts. In the past, personal representatives would have to weave their way through a maze of different rules about whether and how (if at all) they could access a decedent’s digital assets. This was a stressful and burdensome process that often resulted in missed opportunities and lack of essential information for personal representatives.
Washington’s Revised Uniform Fiduciary Access to Digital Assets
Fortunately, Washington State adopted RUFADA on June 9, 2016. This legislation provides a process by which a personal representative or other fiduciaries may request and the digital asset custodian can disclose digital asset information. This means banks, brokers, financial advisors and accounts can no longer deny access for digital records.
In the past, personal representatives were often left without access to a decedent’s digital assets. Now, when many (most?) assets are accessed digitally, this was of great concern for personal representatives needing information to settle an estate. The RUFADA does not only assist personal representatives. It also benefits other fiduciaries including trustees, attorneys in fact under a power of attorney, and court appointed guardians of incapacitated persons. All these fiduciaries may now follow the RUFADA to gain access to information they need to perform their duties (assuming the user has not otherwise limited access to digital assets).
Under the RUFADA, the user of a digital asset may use an online tool to direct the custodian of the digital asset to disclose to a designated recipient some or all of the user/owner’s digital assets. The user retains the ability to update and make changes to his or her preferences regarding access to digital assets (prior to the incident by which a fiduciary obtains control of the assets).
If there is no online tool or if the user has not specified their wishes using the tool, then the user/owner may allow or prohibit in the user’s will, trust, power of attorney, or other record the disclosure of some or all of the user’s digital assets to the fiduciary.
Once authorized by an online tool or by other written document, an authorized fiduciary is permitted full or partial access to perform the tasks the fiduciary is responsible for. The custodian must comply with the request from a fiduciary within sixty days after receipt of the required information and materials. If the custodian fails to comply, the fiduciary may ask the court to grant an order directing compliance.
The RUFADA also specifies what evidence a fiduciary must provide the custodian in order to gain access. After the custodian provides the information to the fiduciary, the fiduciary has a fiduciary responsibility to care for the disclosed information.
Pacific NorthWest Law Group Can Help You Plan for the
Future of Your Digital Assets
At Pacific NorthWest Law Group, it has been our policy to include planning for digital assets as part of our estate planning package. If you would like to discuss digital asset planning as part of your estate plan, please contact Pacific NorthWest Law Group.