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California Executors’ Access To A Decedent’s Digital Assets

California’s Revised Uniform Fiduciary Access to Digital Assets Act allows a California testator to give an executor, administrator, trustee, or other fiduciary authority over his or her digital assets upon the testator’s death or incapacity.  The Revised Uniform Fiduciary Access to Digital Assets Act can be found in sections 870-884 of the California Probate Code.

The Revised Uniform Fiduciary Access to Digital Assets Act allows the grant of authority to access, modify, and delete files and online accounts.  These accounts include social media accounts, email accounts, banking, file sharing, and other online platforms

California’s Revised Uniform Fiduciary Access to Digital Assets Act also allows a testator to prohibit certain people from accessing accounts.

What Is A Digital Asset?

“Digital asset” is defined under the Revised Uniform Fiduciary Access to Digital Assets Act as follows:

“Digital asset” means an electronic record in which an individual has a right or interest. The term “digital asset” does not include an underlying asset or liability, unless the asset or liability is itself an electronic record.

Who Does California’s Revised Uniform Fiduciary Access to Digital Assets Act Apply To?

The Act applies to any of the following:

(1) A fiduciary acting under a will executed before, on, or after January 1, 2017.

(2) A personal representative acting for a decedent who died before, on, or after January 1, 2017.

(3) A trustee acting under a trust created before, on, or after January 1, 2017.

(4) A custodian of digital assets for a user if the user resides in this state or resided in this state at the time of the user’s death.

The Revised Uniform Fiduciary Access to Digital Assets Act does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer’s business.

What Authority Does A California Executor Have Over Digital Assets After Death?

Simply being an executor or other fiduciary does not mean that the executor has the right to access a decedent’s digital assets.  The executor or fiduciary is required to show that the decedent has consented to the disclosure.

Under the Revised Uniform Fiduciary Access to Digital Assets Act, a California executor has the right to receive disclosure of a decedent’s assets if they can show one of the following three things:

  1. Decedent gave prior consent to disclosure using an online tool to the executor or trustee (examples of online tools include Facebook’s legacy Manager and Google’s Inactive Account Manager).
  2. If the online provider did not offer such a tool or the testator did not us such a tool, then the executor must show that the decedent gave permission to the executor for disclosure in writing.
  3. If no online tools for disclosure exist, and no written authorization for disclosure exist, then the terms of service that the testator signed with the service provider is examined to see if disclosure is allowed without a court order.

What Digital Assets Can A California Executor Access?

The extent of the digital assets accessible by the California executor or fiduciary depends on the authority granted and the custodian’s exercise of discretion.  The custodian (defined as a person that carries, maintains, processes, receives, or stores a digital asset of a user), when disclosing the digital assets of a user under the Revised Uniform Fiduciary Access to Digital Assets Act, may grant the executor or fiduciary:

  1. Full access to the account;
  2. Partial access to the account sufficient to perform the tasks with which the fiduciary or designated recipient is charged;
  3. Provide the fiduciary or designated recipient with a copy in a record of any digital asset that, n the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.

A custodian does not have to disclose any digital assets that were deleted by a user.  Additionally, if a custodian is requested to disclose some, but not all, of a user’s digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian.   See California Probate Code § 875.

It is a good idea to have a plan for what happens to your digital footprint after you pass away – a California probate lawyer can help guide you.

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