Washington State’s New Digital Assets Act
Washington State recently passed a new law regarding fiduciaries and digital assets. In general, a fiduciary is a person who “steps into your shoes” if you become incapacitated or die. Examples are an Attorney-in-Fact under a Power of Attorney, or a Personal Representative (sometimes called an Executor). Digital assets are files and information stored in online accounts, such as email, social networking, photo sharing, online music and gaming, domain names, and any intellectual property rights associated with your digital property.
A fiduciary should have legal access to any of your information that is necessary to perform the job. For example, a health care attorney-in-fact generally has access to all of your health care information. Prior to the new law, custodians of digital assets had been denying fiduciaries necessary access to digital information. Many cited the expectation of privacy as the reason for not turning over emails, photos and other information.
On June 9, 2016, the Revised Uniform Fiduciary Access to Digital Assets Act became effective, making Washington State one of only a handful of states to have enacted a law regarding access to digital information. The new act grants fiduciaries the authority to access and manage your digital assets. While it requires custodians (e.g. Apple, Amazon, Facebook) to provide information to fiduciaries, the act does not allow family members or friends (non-fiduciaries) similar access, thereby allowing the custodian to continue to preserve your expectation of privacy.
Unfortunately, the fiduciary’s right to access is not immediate. A fiduciary must provide written evidence to the custodian proving that the fiduciary has legal authority to access a user’s digital assets. The custodian then has up to sixty (60) days to provide access. Additionally, the custodian will be considered to be compliant by providing either (a) full access to the user’s account, (b) partial access sufficient to allow the fiduciary to perform his/her job, or (c) copies of the digital assets the user could have otherwise accessed. For example, Yahoo! will not provide a fiduciary with a decedent’s username or password. Instead, the company will download relevant content onto a CD and provide a snapshot of the account at the time of death.
As more and more of our financial information becomes paperless and our communications become digital, this new act should provide relief to our fiduciaries who are tasked with locating our assets and managing them when we are unable to do so.