The California Legislature handed millions of social networking users a huge victory by providing a clear and consistent method for digital assets and content of emails to pass to the next generation after the user has died. This issue has been a major problem for families who just want access to the pictures that their loved one locked on her iPhone or to shut down a Facebook profile to prevent identity theft.
The Revised Uniform Fiduciary Access to Digital Assets Act (we'll call it the "Act" for short) has a lot of fuzzy language, but in essence it does a few things for those of us who use digital content service providers, such as Facebook, Google, Snapchat, etc. to allow third-party access to our content. First, it always allows a user of to block or allow access through the content provider itself using an "online tool." Two, it allows a special document, like a will or power of attorney, to give a third-party access to the user's content as long as the document is consistent with the online tool (more on that later). It then requires the Facebooks and Googles of the world to comply with the law, such that the content providers must grant access when properly requested. Last, the law makes the content providers immune to any liability as long as they acted in good faith and complied with the law. Let's dig in for a closer look at the mechanics.
The Act defines a company that carries, maintains, processes receives or stores a digital asset of a user of their service as a "custodian." It also defines a "digital asset" as basically anything that is an electronic record, and further defines "record" as information "inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form." So, Instagram, the photo messaging service, is a "custodian" because it carries and processes information stored in an electronic medium, like your digital pictures.
The Act specifically addresses the issue of how to grant access to someone who isn't the user when the user has died and does so by giving you, the user, the most authority over who can get into your account. The Act defines an "online tool" as a service that is separate from the terms and conditions of the custodian that lets the user pick who they want to access their stuff when they've passed and what cannot be accessed by anyone.
The Act also clearly allows a user to designate who may access their account when the directions are put in a will, trust, power of attorney, or "other record," but the online tool always trumps a contradictory term in the will, trust, power of attorney or other record (Cal Probate Code §873(a)). This one section has a lot to digest!
First, the term "other record" stands out because, as you should ask, what do they mean by other record. Well, recall that "record" means not only electronic medium, but also "inscribed on a tangible medium." (Cal Probate Code §871(r)). This has the effect of covering things that are written to a hard drive (that thing in your computer that spins really fast or not at all if you have a newer model), but also could mean "things that I have written in a notebook," for example. It is important to note that a will, trust, and power of attorney all have very formal requirements to make them legal, such as witnesses and notary signatures. In estate planning, the only other record that may be used in conjunction with these documents is a writing that was referenced in the will or trust that easily allows the person to gift tangible personal property or add things to the trust. Given that new online content providers pop up daily, it makes sense that the Act would allow a user to add in their new accounts in a separate writing.
Another thing that stands out is that the online tool takes precedence over a will, trust, etc., but that the default for not using the online tool is that your personal representative, trustee, or agent will have access to your digital assets. So, if you take the time to set up your account access using the online tool, it is wise to remember who exactly you have granted access, otherwise, the person you have picked to be your trustee may have difficulty accessing your content. The implication is that you are better off using the online tool to block access to those you absolutely do not want in your account and instead using the will, trust, power of attorney or other record to pick who can get in. This gives you the universal flexibility of naming one person as representative, trustee, or agent to have access to everything, rather than using the online tool at each custodian's website to change your former spouse to your new spouse.
The Act requires the custodians to comply with the law, but the custodians won't just accept a wink and a handshake before granting access to your stuff. The custodians will require a certified copy of the death certificate, certified letter of appointment, small estate affidavit, or a court order, a copy of the trust, will, or power of attorney along with a written request. In most cases, this information is enough for your representative/trustee/agent to get everything from a custodian, including the actual contents of your email and your digital media. Additionally, your representative/trustee/agent may have to provide a username or other account access evidence to prove that the user is the person whose information is requested and that the representative has the user's permission to access the data.
The legislature didn't stop at specific consent, either. So long as the user has not prohibited access to the data, a personal representative, trustee, or agent without specific consent can still get access to a catalog of communications and digital assets. With the catalog in hand, the representative can see if it is worth petitioning the court for access to the data (or merely letting go of the online recipe book).
The custodians wanted this law passed, and for good reason. The custodians were stuck between privacy laws and a family in mourning who merely wanted the deceased's digital content, like pictures. This law removes the burden of liability from the custodians, so long as they comply with the Act. And while it isn't necessary to specifically provide access to your representative, trustee, or agent with access in a will, trust, power of attorney, or other record, the Act makes the process much easier, cheaper, and quicker if this access is granted.