Managing “digital assets” is the latest frontier in Estate
Planning and Trust and Estate Administration. Who can manage your Facebook
profile if you are incapacitated? After your death, do you want your executor
to have access to your emails? And if you are a fiduciary, such as an
agent under a power of attorney or a guardian, executor, or administrator,
what are your duties with respect to digital assets?
New Hampshire has now provided a framework for answering these questions
in a new law called the Revised Uniform Fiduciary Access to Digital Assets
Act (RUFADAA). RUFADAA is a uniform law currently enacted in 41 other
states and the U.S. Virgin Islands. New Hampshire has adopted the model
act in all relevant parts, and the law took effect on June 25, 2019.
New Hampshire residents who use email or social media or have other types
of digital assets will need to think carefully about their preferred options
under the RUFADDA and may need to take action to ensure their wishes are
fulfilled. As a default, upon proper request, fiduciaries can receive
a “catalogue” of email communications and will also receive
digital assets other than email contents. (A “catalogue” of
emails shows the date, time and email address of emails sent and received,
but not the content of emails.) To avoid the default, users must act to
prohibit disclosure of the catalogue of their electronic communications
and their digital assets. Those users who would like their executors or
Agents to have access to the contents of their email under this procedure
must act to consent for their email contents to be disclosed.
Those serving as executors, administrators, trustees, guardians, or Agents
need to be aware that their duties include managing digital assets.
One effect of this “modernization” is that a validly executed
will in New Hampshire may not be the last word on digital asset access
or distribution. Under the RUFADDA, a digital assets custodian such as
Google or Facebook can choose to provide users with an “online tool”
to manage digital assets. If that online tool allows the user to modify
or delete a direction at any time, then those directions control –
overriding instructions provided in a will.
Facebook, Google, and other large internet companies have supported the
RUFADDA as a way to bring uniformity to how states handle digital assets.
Custodians of digital assets have “sole discretion” to give
fiduciaries full or partial access to user accounts, or copies of records,
and may charge a reasonable administrative charge for the disclosures.
Digital assets owned by an employer are exempted from disclosure, as is
protected health information.
For more information on the RUFADAA, or to address any of your Estate Planning,
Probate Litigation, Trust and Estate Administration, or Elder Law needs, contact:
Benjamin T. Siracusa Hillman, Esq., Chair, Estate Planning, Elder Law,
Probate and Trust Group, in Concord – (603) 819-4231.
Carole Waters, Esq., estate planning attorney, in Dover – (603) 871-4144.