Granting Access To Your Digital Assets – Priority Of Directions; Disclosure
As I described in my previous post, Washington enacted the Revised Uniform Fiduciary Access to Digital Assets Act (RCW Chapter 11.120) (the “Act”) that allows a Washington user of digital assets (such as e-mail, social media, etc.) to provide directions giving, limiting, or denying a designated fiduciary access to their accounts. The user can allow or prohibit disclosure to a designated fiduciary of some or all of the user’s digital assets. There are different methods for providing those directions. The custodian of the asset (the person who carries, maintains, processes, receives, or stores a digital asset of a user) may provide an on-line tool the user may use to direct the custodian to disclose to a designated fiduciary or not to disclose some or all of the user’s digital assets maintained by that custodian. A user could provide such directions in a will, trust, power of attorney, or other record. What happens if the directions provided in an on-line tool conflict with the directions provided in a will, trust, power of attorney, or other record? Which one governs?
If the on-line tool allows the user to modify or delete their direction at all times, a direction regarding disclosure of digital assets using the on-line tool overrides a conflicting direction by a user in a will, trust, power of attorney, or other record. If the user does not use the custodian’s on-line tool to give directions, or the custodian does not provide an on-line tool to give such directions, the directions in the will, trust, power of attorney, or other record would govern. If the user uses either of these methods to provide directions, the direction given by either method overrides a contrary provision in a terms-of-service agreement with the custodian that does not require the user to act affirmatively and distinctly from the user’s agreement to the terms-of-service agreement.
The Act provides a procedure for the custodian to disclose digital assets of a user, as well as the right of a custodian to seek a court order if the custodian believes the proposed disclosure imposes an undue burden on the custodian. For example, the proposed disclosure may be for some, but not all, of the user’s digital assets. If the custodian believes segregating the assets to be disclosed from the assets not to be disclosed imposes an undue burden on the custodian, the custodian could seek a court order for appropriate relief. The designated fiduciary or the designated recipient could also seek such an order. The Act also provides specific requirements for seeking disclosure depending upon the nature of the user.
If you need assistance with your estate planning, contact Per Oscarsson or one of the other attorneys in Beresford Booth’s Estate Planning and Probate Group at info@beresfordlaw.com or by phone at (425) 776-4100.