Pennsylvania recently became one of the last states to enact a law treating digital assets and electronic records as tangible property, which allows executors, trustees, guardians, and agents to access and manage the digital assets of decedents.
Now beneficiaries have access to and may take possession of their loved ones' photos, music, videos, email messages, and other digital content that are hosted on social media platforms such as Facebook and Instagram and stored by tech giants like Apple and Google.
The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), enacted on July 23, 2020, gives executors, administrators, trustees, holders of power of attorney, and guardians legal authority to manage and access electronic records, including email and social media accounts of decedents and incapacitated individuals. RUFADAA also creates a legal framework for third-party digital content platforms or custodians that process or store electronic records when releasing records to the estate fiduciary.
Strict Platform Policies
While many states enacted laws to give estate executors the authority to control digital assets such as social media profiles, email accounts, and online investment accounts, up until July 2020, Pennsylvania did not have such a law, leaving executors and beneficiaries at the mercy of the online platforms and their internal policies for access to the accounts of deceased users. Without account credentials, estate beneficiaries had to rely on the individual policies of the platforms---to the extent they existed---for the disposition of decedents' digital assets. Some platforms' policies provide mechanisms only for account deactivation or the preservation of the account as a memorial page, leaving precious photos, videos, and other valued content locked away and inaccessible.
Beneficiaries who wanted to save content from a loved one's online accounts were often advised to plan ahead and to collect password and login information for the accounts before the person passed away. The informal practice of putting user IDs and passwords in a known, central location for trusted family members to find has increasingly become part of the formal estate planning process, and trust and estate lawyers worked to develop provisions in planning documents---wills, trusts, and powers of attorney---accounting for the decedent's ownership of digital assets and designating who could access and control those assets.
But even having the decedent's credentials or evidence of consent to access accounts through estate planning documents might not be sufficient to grant legal authorization to executors or beneficiaries. If the platform's policies or terms of service don't permit a transfer of ownership, accessing the accounts of a deceased owner could leave beneficiaries open to accusations of computer crimes, either by the platform operators or by unhappy family members.
'Digital Asset' Defined
RUFADAA defines "digital asset" as "an electronic record in which an individual has a right or interest," although not "an underlying asset or liability unless the asset or liability is itself an electronic record." The law also specifically defines "information'" as "[d]ata, text, images, videos, sounds, codes, computer programs, software, databases, or the like."
As with tangible property, the transfer of digital assets can be accomplished through instructions in a decedent's will, trust, or power of attorney, although RUFADAA does impose some limitations that individuals should know and understand. The fiduciary must provide the platform with a written request for the digital assets, a certified copy of the decedent's death certificate, and a copy of the decedent's will, trust, or power of attorney indicating the decedent's consent to the disclosure of the digital assets.
Platform Rights
RUFADAA does not automatically allow fiduciaries and estate representatives unfettered access to the decedent's accounts, however. Platforms have the discretion to determine the amount of access the designated estate representative may have---either full access, partial access "sufficient to perform the tasks with which the fiduciary or designated recipient is charged," or copies of records of any digital asset that the decedent could have accessed if alive. They can impose a reasonable charge to cover the cost of disclosing the digital assets and communications and are not required to retrieve and disclose any digital assets that were deleted by the user. RUFADAA also does not apply to digital assets belonging to the decedent's employer that were used by the decedent in the ordinary course of the employer's business.
Platforms may also request "any number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the [decedent's] account" or "evidence linking the account to the [decedent]" before disclosing digital assets. In the absence of this information, RUFADAA permits platforms to require a court determination that the decedent had an account, that the decedent consented to the disclosure of the electronic communications, that the disclosure "is reasonably necessary for administration of the estate," or that the disclosure by the platform does not violate federal or state law governing electronic accounts and communications. Under Pennsylvania's version of RUFADAA, which differs from the uniform law, the issuance of letters testamentary or letters of administration to the personal representative has the same force and effect as a finding by the court.
Pennsylvania Joins the Majority
According to the Uniform Law Commission, Massachusetts, Oklahoma, and the District of Columbia are the only remaining jurisdictions without similar legislation in place, but each introduced bills in 2020.
