When it is enacted in state legislatures this year, RUFADAA will give effect to a user’s express instructions regarding whether or not a fiduciary should have access to the user’s digital assets. Users can provide those instructions in their traditional estate planning documents, via some other record, or via use of an online tool. An “online tool” is an account-specific feature the online service provider offers to its users to enable a user to express his or her wishes regarding that account. At present, we know of only two online tools—Facebook’s Legacy Contact and Google’s Inactive Account Manager.
Facebook’s Legacy Contact permits a user to designate another Facebook user to as a Legacy Contact after the user’s death, respond to new friend requests, write a pinned post for the deceased user’s profile, update the deceased user’s profile picture, and download a copy of what the deceased user shared on Facebook.
Google’s Inactive Account Manager is more robust. It allows a Google user to notify up to ten other people (trusted contacts) when the user’s Google accounts have been inactive for a period of time specified by the user (although it cannot be less than 3 months). The user may also grant access to one or more of the user’s Google accounts to one or more of those trusted contacts, and/or to send an automated email response to incoming emails.
At present, a user has to go searching for an online tool in order to set it up. Facebook and Google do not require users to use them. However, if RUFADAA is widely enacted in the states, not only will there be more incentive for other internet companies to devise online tools, but there will also be more incentive for internet companies to make their use mandatory. Online tools will be favored by the technology industry, as preferable to users leaving instructions in their estate planning documents, because following instructions via an online tool will be cheaper than staffing in-house compliance departments to read and interpret estate planning documents for every deceased user.
RUFADAA provides that the user’s expression of intent via an online tool will trump the same user’s expression of intent in his or her estate planning documents.
Certainly, broad enactment of RUFADAA would be a good thing. It would give you the ability (which you do not have now) to direct what should happen to your digital property in the event of your death or incapacity, and it can give your fiduciaries access to the information they will need in order to manage your affairs and preserve the value of your assets. Taking proper advantage of the benefits of an enacted RUFADAA, however, requires a little consciousness-raising education. Consider:
- Your estate planning documents are carefully drafted by experienced estate planning attorneys who understand the nuance and effect of the language they employ. You review drafts of your documents, carefully contemplate their terms in consultation with your attorney, and make thoughtful, informed decisions about what they should say.
- In contrast, the online tool for any given internet account may be written by an intern at a start-up tech company, with zero legal training and no idea how estate administrations are conducted. In addition, you may be confronted with an online tool when you are trying to open an account late at night, not thinking about your estate planning at all, eager to click through whatever the computer is asking you so that you can get to the next page.
You spend a significant amount of money to get a comprehensive, thoughtful estate plan in place, tailored to your needs, that will ensure that your fiduciaries are empowered to act on your behalf in all the ways they will need to do so when the time comes. You do not want to undermine that effort with a few impulsive clicks.
Consequently, it is very important to understand what online tools are, to recognize one when you see it, and to consider carefully what instructions you provide via that online tool. Expect to see internet companies asking you what you want to happen to your account when you die or become incapacitated. Still worse, expect to see the query posed as a leading question, such as, “Do you want us to keep your emails private?” We hope that is an exaggeration, but certainly some online tool queries will be slanted to encourage you to choose the option that costs the internet company less in compliance, and they will not first provide you with expert estate planning advice before you respond.
