Digital assets have become an integral part of our lives. From e-mail accounts to digital photos to cloud based storage accounts to cryptocurrencies, almost everyone owns some type of digital asset. Until recently, Pennsylvania law provided no guidance for individuals to transfer their digital assets or for their executors, trustees, powers of attorney, or guardians to access their digital assets. After much anticipation, Gov. Tom Wolf signed the Pennsylvania Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) into law on July 23, 2020, thereby inserting Chapter 39 into the Pennsylvania Probate, Estates & Fiduciaries Code. Modeled after a version adopted by the Uniform Law Commission, Pennsylvania’s RUFADAA provides a much-needed modernization of Pennsylvania’s digital access and digital disclosure laws.
RUFADAA is designed to serve two primary goals. First, it is designed to fill the statutory void whereby fiduciaries did not previously have the authority to access an individual’s digital assets or electronic communications, especially at the individual’s death. Second, RUFADAA provides a statutory framework for custodians of digital assets and electronic communications (e.g., Google, Apple, Yahoo, Facebook, etc.) to follow to safely disclose an individual’s digital assets and electronic communications to a fiduciary.
I. Fiduciary Access to Digital Assets
RUFADAA creates a new hierarchy in Pennsylvania for fiduciary access to an individual’s digital assets. Through the use of “online tools” created by custodians, a user may direct the custodian to disclose or not disclose some or all of the user’s digital assets, including the content of electronic communications, to a designated recipient. Often analogized to beneficiary designations, online tools explicitly override a user’s direction in a will or trust. Google, for example, has created an inactivity online tool to allow a user to designate a specific individual to access his or her Google account after a specified period of inactivity.
In the absence of an online tool or a designated recipient, a user may, in a will, trust, power of attorney or other record, allow or prohibit disclosure to a fiduciary of some or all of the user’s digital assets, including the content of electronic communications sent or received by the user. RUFADAA clarifies that the express direction in a will, trust, power of attorney, online tool, or other record may override the provisions of the custodian’s terms of service agreement in the absence of an online tool.
Finally, in the absence of an online tool or the failure to specifically direct in a will, trust, power of attorney, or other record, the custodian’s terms of service agreement will govern a fiduciary’s access to a user’s digital assets and electronic communications. In that case, the fine print of the terms of service agreement will govern access to a decedent’s digital assets.
II. Procedures for Disclosure of Digital Assets
In addition to providing a framework for an individual to authorize access to digital assets and electronic communications, RUFADAA provides custodians with a roadmap for disclosing digital assets or electronic communications to fiduciaries. First, custodians have full discretion to grant a fiduciary or designated recipient under an online tool access to a digital asset. This discretion was intended to give custodians a choice as to how best to provide access to digital assets, recognizing that custodians have different business models and different capabilities.
Next, custodians must disclose the content of an electronic communication to a fiduciary if the user specifically consented to the disclosure. The “content of an electronic communication” is defined as information concerning the substance or meaning of the electronic communication that: (1) has been sent or received by a user; (2) is in electronic storage by a custodian providing an electronic communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and (3) is not readily accessible to the public. For example, for an executor to be able to access the content of a decedent’s electronic communications, the decedent must consent to the disclosure in his or her will. Individuals should consider whether they want to grant their executors the authority to access some, none, or all of their digital assets and electronic communications.
Finally, if the decedent failed to consent to the disclosure of the content of electronic communications, the custodian must disclose a catalogue of the electronic communications to the fiduciary. A “catalogue of electronic communications” is defined as information that identifies: (1) each person that has had an electronic communication with a user; (2) the time and date of the electronic communication; and (3) the electronic address of the person having the electronic communication with the user. For example, in an e-mail or electronic communication, a catalogue would include the identities of the sender and recipient of the electronic communication, the date and time of the electronic communication, and the e-mail addresses of the sender and recipient. The catalogue would not include the actual content of the electronic communication.
While a custodian may request a court order providing that the user had a specific account with the custodian and that disclosure is reasonably necessary for administration of the estate, unique to Pennsylvania’s RUFADAA, the mere issuance of letters testamentary or letters of administration to the personal representative has the same force and effect as such a court finding, so long as the personal representative: (1) files an affidavit with the Register of Wills setting forth such information; and (2) upon request, provides the custodian with a copy of such affidavit that bears evidence that it was filed with the Register of Wills. The affidavit may be included in the petition for grant of letters testamentary or letters of administration and sworn before the Register of Wills, or included in a supplement to such petition and sworn before the Register of Wills. It is unclear, however, if custodians will accept letters testamentary or letters of administration in lieu of a formal court order.
III. Revision to Powers of Attorneys
RUFADAA also amends Chapter 56 of the Pennsylvania Probate Estates & Fiduciaries Code by including an agent’s ability to access the electronic communications and digital assets of the principal as a “hot” power that requires a specific grant of authority. Thus, such a power is not granted to the agent under a general grant of authority. This new “hot” power goes into effect for powers of attorney executed on or after January 19, 2021, the effective date of RUFADAA. While powers of attorney executed before the effective date of RUFADAA need not contain this “hot” power, individuals may want to update their powers of attorney to avoid any ambiguity with digital asset custodians.