RUFADAA – What’s That?

I never heard of it, but now both you and I have.

RUFADAA stands for REVISED UNIFORM FIDUCIARY ACCESS to DIGITAL ASSETS ACT.  It is a model law that is designed to deal with your digital exhaust after you move on to the afterlife (I am not sure, but I don’t think they have Internet access in heaven or even in the other place).

The issue is that many online service’s user agreements strictly limit what happens to your access after you die.  For example, Apple doesn’t want you to share.  The license agreement says “Unless otherwise required by law, You agree that your Account is non-transferable and that any rights to your Apple ID or Content within your Account terminate upon your death.  Upon receipt of a copy of a death certificate, your account may be terminated and all Content within your Account deleted”. Source: Apple.

So what is the solution?  RUFADAA.    The original model law (that state legislatures can use to create their own law) was created in 2014 and it gave executors and personal representatives unfettered access to your digital assets.  Examples include things like all of your personal photos that might be stored in the cloud.  But it also includes your email, which you may or may not want your executor to read.  It also would allow them to get the login information to, say, cancel online accounts that might be billed to the deceased every month.

Tech companies said this was contrary to federal privacy laws and state and federal computer fraud laws (that seems like a bit of a stretch, but maybe).  They also said that it violated their terms of service which say things like when you die, so does your content.

The revised version, called RUFADAA, greatly reduces the authority that an estate executor has regarding access to digital assets.

Under RUFADAA, an executor no longer has access to your emails, tweets, chats and other electronic communications unless the deceased specifically consented to that disclosure.

An executor can get access to other types of digital assets but only if he or she petitions the court and explains why access is needed to wrap up the estate.

If the fiduciary does not have explicit permission through a will or something similar, the online service can look to their terms of service for guidance.  I.E., if your will does not grant your executor access to your iTunes photos, Apple will look at their terms and tell you to take a long walk off a short pier.

OK, so what should you do?

#1 – Create a complete inventory of all of your online accounts where anything important is.  That includes things like your subscription to any online content for which your estate will be billed.  If your executor does not cancel your account, you will continue to be billed and are likely legally obligated to pay for that account, even if you don’t even know it exists.

The simplest but least legal thing to do (because it likely violates the terms of service that you agreed to abide by) is to write down your userids and passwords and store them in a safe place or with a trusted person (such as your personal attorney), but remember to change the document when you change your passwords.

The better thing to do is to change your will to explicitly grant your executor access to your digital exhaust to whatever degree that you want.  This can be done formally in your will or informally by writing those instructions in crayon and signing it.  Or anything in between.

Include information and instructions to your executor, along with userids, passwords, two factor authentication information (don’t pull an FBI and cancel the deceased’s phone service before you figure out that you need to be able to receive a text message on that phone in order to log in).  DO NOT INCLUDE THESE INSTRUCTIONS IN YOUR WILL BECAUSE ONCE THAT IS FILED WITH THE COURT, IT COULD BECOME PUBLIC, ALONG WITH ALL OF YOUR PASSWORDS.

41 states have enacted RUFADAA.  Here is a current list.

Bottom line is that it is up to you, but the law is really working against you, not for you, unless you take specific actions.  The good news is that if you do take specific actions, your service providers must follow your wishes.  

Source: Nolo, The Legal Encyclopedia



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