As our world becomes increasingly digitized, when we die, we leave an expansive digital footprint. For many, this footprint includes assets, intellectual property and other information such as copyrights, photos, pictures, messages, digital currenc(ies), passwords and more. An ever increasing question is who has access to these things after we leave the planet.
In this situation as in many others, the law often lags behind the issues of the day. This leaves individuals, including estate planners and professional fiduciaries with the question of how to counsel clients as to assets both now and in the future. Presently, the California Probate Code offers guidance to California advisors.
The Revised Uniform Fiduciary Access to Digital Assets Act is outlined beginning at Section 870 of the California Probate Code. Within these sections, the Legislature gives definitions for concepts in this area such as custodians, accounts, catalogues, digital assets and electronic communications and reiterates the rights of owners of digital information and assets. Owners are able to give and/or limit access to specific individuals.
Fiduciaries given the responsibility to manage digital assets have duties in managing those assets including the duty of care, loyalty, and confidentiality. They are also subject to other laws that may apply to the particular asset, such as copyrights and trademarks. The scope of their duties is not without limit as fiduciaries are only obligated to act as to things for which they have authority. Thus, an individual may limit the responsibility of the fiduciary. For example, an individual with bitcoin and digital art may opt to preclude access to the art and thereby limit such access via certain provisions in their estate documents. The practical side of doing so, however, requires the individual to ensure that they provide access to the art in another authorized manner.
For these reasons, digital assets provide one of many reasons to have thoughtful plans and enforceable legal planning in place. Folks are wise to consult competent legal practitioners to aid with such plans. The lawyers here at Haeuser, Valluzzo & Piasta offer comprehensive estate services, including thoughtful planning of digital assets.