State enacts Uniform Fiduciary Access to Digital Assets Act (“UFADAA”)
December 5, 2016
A big question brought on by the digital revolution is the disposition of online accounts and records of the deceased. Businesses such as email service providers and social media companies need to protect privacy, while fiduciaries and other representatives need to marshal the assets of the deceased, including digital assets. Assembly Bill 691 adopts a version of UFADAA effective in January 2017. Banks would be affected primarily in the provision of trust services. The bill establishes a three-tier priority system for determining the deceased user’s intent with regard to disclosure. First priority is accorded to a user’s instructions or designation made through a company’s “online tool,” which is a service that an accountholder may use to direct fiduciary access. Absent such a designation, the next priority is given to a user’s directions contained in a will, trust, power of attorney, or other record for the disposition of the user’s digital assets. Lastly, the “terms of service agreement” on the account governs disclosure. But if none of these conditions applies, then the bill’s default rules come into play. See CBA’s Regulatory Compliance Bulletin for more information.
 Terms of service agreement means “an agreement that controls the relationship between a user and a custodian.” Section 875(d).