Despite being the home to the tech hub of America, Silicon Valley, California has yet to enact any legal guidelines for accessing digital accounts after someone dies. Yes, I am aware Facebook and a handful of other sites have their own procedures for dealing with accounts in the afterlife, but it remains that California probate law has no legislation to deal with this vast and ever expanding new form of asset. Within the past two years, no less than twenty states have adopted some version of the Uniform Fiduciary Access to Digital Assets Act, and seven others are in the process of adoption.California is not among them.
The UFADAA, as the legislation is known for short, was drafted by the Uniform Law Commission to extend fiduciary duties to include management of digital accounts. In other words, to give access to estate administrators, trustees and conservators to access digital assets just as they would a deed or bank account.
The Commission is made up of attorneys from across the U.S. for the purposes of drafting laws for which “uniformity across the states is desirable.” Seeing the chaos created by preventing fiduciaries from carrying out their duties, the commission set out to create legislation that would extend a fiduciary’s authority over a person’s digital assets.
Last February, California introduced their own version of the UFADAA, calledThe Privacy Expectation Afterlife and Choices Act.The law stopped dead in the senate due to overwhelming opposition, and has since been put on hold with no date in sight for its return to the legislature floor.
Last year, California became one of the first states to pass End of Life legislation, following in Oregon’s footsteps. In March of this year, Oregon led the way again with its passage of SB-1554 , a revised version of the Uniform Law Commission’s bill. Unlike its position as a leader in the End of Life dialogue, It doesn’t appear California will be at the forefront of the digital asset debate. In fact, the tech savvy state could be left out altogether.
Despite the fact that California has no specific legal guidelines that direct the facilitation of digital assets by the companies that own them, one can still request that heirs and beneficiaries be granted access to their accounts. They can do this through the same methods as states with digital asset protection laws - an online tool, a will, a trust, or a power of attorney. The difference is that there are no laws in place to ensure their wishes are honored. There’s also no legal recourse for family members who have evidence their deceased family member would havewished for them to have access to their accounts, not to mention digital account access by conservators when appropriate.
So how exactly does this new law work, and how could California residents benefit from its passage? Simply put, the law is a tool that will allows individuals to provide instructions for what will happen to their digital accounts after they die. The law provides guidance on how to legally grant access to your accounts in Estate Planning documents. The revised version (passed by Oregon) also specifies the legal requirements and duties of digital sites with personal accounts to provide the information of the deceased.
The law elaborates on the methods for a personal representative to access digital accounts, either through the consent of a “deceased user” or as “a court directs.” The custodian (such as Facebook) must disclose to the personal representative the “content of an electronic communication sent or received by the user” if they are provided with (1) a written request for disclosure, (2) a certified copy of the death certificate, and (3) a certified copy of the letters, small estate affidavit, or court order. The personal representative must also provide evidence that proves the user’s consent to disclosure of the electronic communications in question. In other words, if a personal representative wishes to access the Twitter account of a deceased person, they must provide documentation that shows the deceased person granted permission for said access. This proof could be in the form of the user’s will, trust, power of attorney, online tool, or “other record evidencing consent to disclosure.”
Of particular interest to Elder Law attorneys is that the law also sets forth guidelines for conservators. The law states that “after an opportunity for a hearing, the court may grant a conservator access to the digital assets of a protected person.”
Will California be next to adopt a similar law? With the growing number of social media sites like Facebook, Instagram, Snapchat, and Twitter, digital accounts are becoming more and more relevant. In addition to parents or children who may wish to keep accounts active for posterity, there are some accounts that heirs and beneficiaries will want access to for financial reasons. As social media has grown in terms of popularity, companies and individuals alike are cashing in on the opportunity to use them as a selling tool. While larger companies might have a team that manages their social media sites, smaller companies and artists are more likely to have personal accounts. And those personal accounts could be an important marketing tool or direct source of income. In these instances, social media accounts are not just for facilitating communication, they are financial assets as well.
For example, take teen music sensation Justin Bieber. What is Justin Bieber’s Twitter account worth? While the exact value of a digital account may be difficult to quantify, defining legal parameters for digital assets to survive past the death of their owner is an important step toward incorporating this new currency into Estate Planning. Now, most Estate Planning and Elder Law attorneys will not have celebrity clients. More likely, they will encounter artists, musicians, and small businesses who use social media to drive sales on a smaller, but still significant level.
For example, I have a good friend whose mother, a well regarded artist, recently passed away. One of the ways in which her mother sold her artwork was through her social media accounts. My friend happened to know the login information for each account, and has been able to access the accounts and retain her mother’s large following. Futhermore, her brother agreed to let her manage all sales through social media going forward, and keep the profit. But what if she didn't know all her mother's relevant passwords? And what if her brother wasn’t so generous and the could not come to an agreement? The accounts and the future income generated by them would likely be lost for good.
Now, the social media savvy among you may already be aware of Facebook and other sites’ procedures for memorializing accounts of deceased users. Even if their peers follow suit, are company policies really enough?