Granting Access To Your Digital Assets
Many people have one or more social media accounts. Many people have one or more e-mail accounts. These accounts are used to communicate with others in one way or another. Online banking is another type of account. Often, the user of the account does not want anyone else to have access to their account. But, what if the user is unable to access their account due to illness, injury, or incapacity? What if the user is missing and access to their accounts may be useful in locating them? What if the user has died and access to such accounts is necessary for proper administration of their estate? If you were the user, would you want to designate someone to be able to access your accounts? Some providers of these accounts provide an online tool that allows the user to grant or limit such access.
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 to provide such directions concerning 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, including the content of electronic communications sent or received by the user. The Act applies to a fiduciary acting under a will or power of attorney, a personal representative acting for a deceased person, a guardian acting for an incapacitated person, a trustee acting under a trust, and a custodian if the user resides in Washington or resided in Washington at the time of their death. Under the statute, a “fiduciary” is defined as a personal representative, guardian, agent, or trustee. A “custodian” is defined as “a person that carries, maintains, processes, receives, or stores a digital asset of a user.” The user can provide directions by will, trust, power of attorney, or other record. The Act does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer’s business.
Understandably, a user may be hesitant to grant anyone such access for any number of reasons. However, the legal duties imposed on a fiduciary responsible for managing tangible personal property also apply to management of digital assets, including the duty of care, the duty of loyalty, and the duty of confidentiality. As a result, the fiduciary can be held accountable for breach of these duties.
The next installment on this topic will address priority in the directions given by a user and the disclosure of information.
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.