NEW CALIFORNIA LAW ADDRESSES DIGITAL ASSETS

We have previously written about the emerging issue of access to a person’s digital assets after his or her incapacity or death.  We noted the absence of any solid legal guidelines and the problems that it has caused.  The phrase “digital assets” covers the very diverse world of information that exists online including, but not limited to, emails, photos, web pages, online accounts and other data stored online. Effective January 1, 2017, a new California law, Assembly Bill 691, is California’s first formal attempt to address this issue.  This new law authorizes and provides some guidelines for a deceased individual’s personal representative to access and manage his or her digital assets and electronic communications. Assembly Bill 691 enacts the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in our state and authorizes a decedent’s personal representative or trustee (fiduciary) to access and manage digital assets and electronic communications.  Through this bill, an individual may use the following methods to provide direction regarding the disclosure of his or her assets upon death:

• A person may use a website’s online tool. Unfortunately, it appears that very few websites currently have such a tool.
• If an online tool is not provided or used, a person may give direction in a will, trust, or other record. This will typically require that older wills or trusts be amended to add such language.  Our firm’s legal documents have included such language since 2012.
• In the absence of the first two options, a website’s terms of service will determine how to disclose information. Very few of these provisions make such access very easy.

While we applaud this new effort, it falls short of establishing an easy and quick access by a person’s estate representative or trustee.  In addition, is does not address accessing one’s digital assets in the event of incapacity.  With our growing elderly population, there are growing numbers of persons who develop Alzheimer’s, dementia and other incapacitating illnesses. PRACTICAL TIP: Until a more comprehensive law is passed, we still recommend that you create and keep current a list of your important user names and passwords and be sure your trustee, executor and designated agent under your power of attorney have ready access to this critical information.  Such forms are available to our clients for free simply by asking.