Access to Electronic Records and Communications

Electronic records and electronic communications are electronically kept by banks, brokerages, and other institutions to store important customer account information and communications. A person’s interest in such electronic records is called a “digital asset”. California’s “Revised Uniform Fiduciary Access to Digital Assets Act” (“RUFADA”), in Probate Code sections 870 to 884, provides California’s state level legal authority and framework regarding how representatives appointed under California law can gain access to someone else’s digital assets and how custodians respond to such requests.

Access to digital assets and online accounts is an important consideration in estate planning when preparing one’s power of attorney, trust and will instruments. With proper planning, a legal representative can be given authority to access and even terminate digital assets related to one’s financial accounts, social media accounts, and email accounts. Otherwise, such assets may remain beyond the representative’s control, when the owner is incapacitated or deceased, if the representative does not have the owner’s proper user-name and password (online) credentials.

Effective January 1, 2025, in California, agents acting under a power of attorney and court appointed conservators of an incapacitated person’s estate are now added those fiduciaries (legal representatives), including personal representatives of a decedent’s estate and trustees, who can be given authority to access someone else’s digital assets under RUFADA.

An owner of digital assets can authorize their representative to have access to their digital assets either by using the digital asset custodian’s online tool or by signing legal documents, such as trusts, wills, and powers of attorney that provide the owner’s express consent. Presently, the California statutory uniform power of attorney does not directly authorize access to digital assets. However, special instructions related to digital assets can be added to the form with such authority.

Once a custodian of digital assets (e.g., a brokerage) receives a request from a representative for disclosure of a customer’s digital assets, together with the other required documentation (authority) from the representative, the custodian has sixty (60) days to provide the representative with access to the digital assets. Such documentation, in the case of an agent, also includes a copy of the power of attorney and a certification under penalty of perjury that it is still in effect.

The scope of access to digital assets that is granted to a representative can be either partial or full access, depending on what authority the representative was given in the online tool or legal document, e.g., a power of attorney or a will, as relevant. If partial access to digital assets is granted then the custodian need not disclose the assets if “segregation of assets would impose an undue burden on the custodian”. Thus, granting partial access comes with a risk that no access at all will be the end result.

A representative who has gained access to digital assets, is subject to the following three duties govern the representative’s control of such electronic records and communications: (1) the duty of care; (2) the duty of loyalty; and (3) the duty of confidentiality. These fiduciary duties are to protect the digital assets from being negligently stored, shared inappropriately or used for improper and/or unauthorized (even self-serving) purposes by the representative.

Now that California has fully expanded its digital assets law to include all legal representatives, California residents should take full advantage of their legal right to give representative access to digital assets through well drafted powers of attorney, trusts and wills. Failing to include such authority can result in unnecessary and unintended loss of access to important online electronically stored account information.

The foregoing simplified discussion of a very technical subject is not legal advice.  Consult a qualified estate planning attorney for guidance. Dennis A. Fordham, Attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.