New Illinois Laws for 2017, Part 1: Fiduciary Access to Digital Assets

This post will be the first in a series of posts about new Illinois probate and estate laws taking effect in late 2016 or the beginning of 2017.

I have been writing about the emerging issues surrounding estate planning for digital assets for several years (read all of my posts here). After years of debate and revisions, states began introducing and passing legislation in 2016 based upon the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) passed by the Uniform Law Commission.  At last count, at least 25 states have enacted legislation based closely on the RUFADAA approach.

On August 12, 2016, Governor Rauner officially signed the “Revised Uniform Fiduciary Access to Digital Assets Act (2015)” into law, which went into effect immediately (the statute can be found here). The basic purpose of the law is to define and clarify when and how digital assets custodians provide information and access to fiduciaries (executors, trustees, guardians and agents) acting on behalf of deceased or disabled users.

This is generally a positive development, but it remains to be seen how custodians will respond. RUFADAA gives custodians broad ability to require a court order upon demand.

On the estate planning side, the broad approach is as follows:

1. Include in Estate Planning Documents — All wills, trusts and powers of attorney for property should address a fiduciary’s access to digital assets. In most cases, individuals will want to authorize broad access, both to a catalogue of data and to the content. But if the opposite direction is desired, that can be spelled out as well. That is to say, for example, if you do not want your executor to access your e-mails, you may say so.
2. Make a Digital Account Inventory — List all accounts and assets, including the website’s domain name, your username, password, security questions and other identifying information that may help allow your successors to discover information.  Update this list frequently and take steps to ensure that your designated successors will have convenient and safe access to this list when they need it.  A basic spreadsheet can go a long way. Be sure to protect the privacy and security of this list to avoid providing a roadmap for identity theft.
3. Consider Using Online Tools Where Available — One of the new concepts in RUFADAA is the “online tool.” An online tool is defined as an electronic service provided by a custodian that is distinct and separate from the TOS. Some actual examples: Facebook’s Legacy Contact and Google’s Inactive Account Manager. RUFADAA expressly permits a custodian to offer an online tool and provides that a direction regarding disclosure using an online tool supersedes a contrary direction in a will, trust or power of attorney. Sounds convenient and efficient, but it is also another aspect to amend as situations change. Perhaps you amended your estate plan to eliminate that ex, but did you also update all of your online tools?

If you are reading this, you have digital assets. And if you have digital assets, access should be specifically addressed within your estate plan, rather than relying on the more unfavorable default rules that severely restrict and limit access to fiduciaries.