Whether they realize it or not, most people have and utilize digital assets. Digital assets may help you communicate (like emails), make payments, manage subscriptions, maintain bank accounts, store photos, and etc.
Prior to RUFADDA, there were few laws in place that helped decide who may access these digital assets if the owner ever became incompetent or died. It was also difficult to determine what an Executor, Trustee, or other designated person, could do once they had access to the digital assets (i.e. destroy them, amend them, or distribute them to loved ones).
New York has laws that provide for the administration of digital assets in the event of your incapacity or death and RUFADDA governs and extends powers traditionally given to an Executor, a Trustee, or other designated person, the ability to access someone’s online accounts and digital assets after incapacity or death. RUFADDA also authorizes your Executor, Trustee, or other designated person, to access and disclose digital assets to authorized recipients or fiduciaries as directed in your plan.
RUFADAA has a three-tier priority system for accessing digital assets.
First, as the owner of the digital assets you can instruct your custodian to disclose the contents of assets using an ‘online tool’. Any such directive takes precedence over any contrary direction in your will or trust or other records.
Second, if the owner does not make use of any online tool, instructions in a will, trust, power of attorney, or other record will determine what should be done with their digital assets.
Thirdly, where the owner has not given any instructions through an online tool or other legal document, the “terms of service agreement” (TOSA) that you agreed to together with the Service Provider will determine how the executor can access those Accounts. In the absence of any provision in the TOSA, RUFADDA’S default regulations will be the executor’s only remaining choice.
Not every Service Provider has dedicated online tools or provisions in their service agreements for handling accounts in the event of a user’s death or incapacitation. Therefore, it is essential for you to create an estate plan to enable your executor to gain access to your digital assets.
Create your digital estate plan today
Preparing a digital estate plan not only ensures your online legacy is preserved but also eases the burden on your loved ones during a difficult time. If you’re looking to create a digital estate plan or wish to discuss updates to your current plan, our elder law attorneys are here to guide you through the process. To schedule a consultation with our law firm, simply drop us an email at judy@judymocklaw.com or call 718-490-7177
