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Colorado law, user agreements and your legacy of digital assets, part 2

On Behalf of | Sep 25, 2020 | Estate Administration & Probate |

In part 1 of this post, we talked about the importance of taking inventory of your digital assets and making long-term decisions about what you want to happen to each one, either before or after your death. We also discussed the kinds of digital assets that people have, some with monetary value, others with sentimental value and some with private content. Obviously, there are many personal considerations when you make decisions about this kind of property.

E-services offered by commercial entities

Companies that are custodians of your digital assets likely have long user agreements that you – like almost everyone else – agreed to without reading years ago. Find out what those terms of use are and how they affect what access and authority you can give to others after your death. Depending on what you learn, you may decide to transfer or delete some data or digital property before your death.

For example, Facebook’s website explains that you can have your page “memorialized” after death so your friends can leave tributes, designate a “legacy contact” to manage the memorialized account or designate that your account be deleted at death. Terms of use vary widely between providers and are likely to morph over time.

Colorado Revised Uniform Fiduciary Access to Digital Assets Act

On August 10, 2016, Colorado – like almost all other states – passed the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA or the Act). This act governs when fiduciaries, such as personal representatives, trustees, conservators and agents under powers of attorney, can access the digital assets of the people to whom they owe fiduciary duties like those of care and loyalty. Almost all other states have adopted the RUFADAA in some form.

RUFADAA procedures to access digital property of another may be available to a fiduciary if the digital property owner to whom they owe fiduciary duties has died or become incompetent. The fiduciary’s power and legal responsibilities to manage and protect the digital assets of the person must be carried out in that individual’s best interest.

A caveat is that, while the RUFADAA lets fiduciaries access and manage a variety of digital assets like web domains, crypto currency and traditional computer files, they may only access electronic communications like those in email and social media if the owner gave explicit permission in their will, trust or other recognized legal document.

This is a high-level summary of the Act, which contains complex provisions about fiduciary access in case of conflicts among terms-of-use agreements, wills and other legal documents that the owner executed; online tools provided by the custodian of the digital property for the user to designate access instructions; and court orders.

Make questions about estate planning for digitally held assets part of your comprehensive estate planning consultations with your estate planning lawyer. This topic is complicated and constantly evolving, so experienced legal counsel is a smart choice.