Tom J., as Executor of the estate of John J., must deal with the real estate and personal property assets, such as cash, clothing, vehicles, furnishings, etc. In addition, the executor must gather and distribute the digital assets, if any, owned by the decedent. Tom’s dilemma is one facing many executors today and the means of handling that task are far from easy.
The 2017 Texas Legislature enacted the Texas Revised Uniform Fiduciary Access to Digital Assets Act (TRUFADAA) in Chapter 2001 of the Estates Code, which defines digital assets as all electronically stored information records in which a person has an interest. The assets include: (1) information stored on a user’s computer and other digital devices; (2) content uploaded to websites; (3) rights in digital property; and (4) records that are either the catalogue or the content of an electronic communication.
In an article titled “The Texas Revised Uniform Fiduciary Access to Digital Assets Act: A Primer for Estate Planners,” Gerry Beyer, Professor at Law at Texas Tech University School of Law, gives these as examples of digital assets: e-mails, text messages, photos, digital music and video, word processing documents, social media accounts (e.g., Facebook, Linkedin, Twitter), on-line financial, utility, credit card and loan accounts, and gaming avatars.
A fiduciary under the Act means a personal representative of an estate, whether an executor or an administrator, an agent under a non-medical power of attorney, a guardian of an estate, and a trustee of a trust. Texas Estates Code §2001(2).
The custodian is the person who carries, maintains, processes, or stores a digital asset (e.g., the user’s email provider, such as Yahoo, Google, Bing, etc). The hosts of the user’s social media accounts, such as Facebook or Linkedin, are also custodians, as are the user’s financial accounts maintained on-line in banks, brokerage, firms, utility providers, credit card issuers and mortgage companies. See Texas Estates Code §2001.002(6).
There are two types of access. One is the content of electronic communications such as the subject line and text of e-mail messages. The second is the catalogue of electronic communications. The catalogue includes the name of the sender, the e-mail address of the sender, the date and time of the message and other digital assets (such as photos, videos, material stored on the user’s computer, etc.).
If the decedent’s will provides consent to the executor’s accessing digital assets, a custodian is required to disclose the contents of the decedent’s communications to the executor. To obtain the contentof the digital communication, the executor will have to provide to the custodian: (1) a written request for disclosure; (2) a certified copy of the deceased user’s death certificate; and (3) a certified copy of the documentation (typically the will) in which the user consented to the disclosure of the content of electronic communications specifically.
The custodian has the right to request additional information from the executor, such as information necessary to identify the user’s account and evidence linking the account to the user. The custodian may also demand a finding by the court that: (1) the account actually belonged to the decedent; (2) the contents does not violate the Stored Communications Act and other federal laws; (3) the user consented to disclosure; (4) disclosure is permitted by TRUFADDA; and (5) the disclosure is reasonably necessary for estate administration. Texas Estates Code § 2001.101(b).
To obtain access to the catalogue and digital assets other than content, the executor must provide the custodian with the specified required documentation to access content except the executor is not required to produce the will or prove that the decedent specifically consented to disclosure. Texas Estates Code §2001.102.
Having to obtain a court order is a practical and burdensome problem for the executor. In his article referenced above, Professor Byer stated that he has been informed that Google and Facebook will always require a court order to allow access to the decedent’s digital accounts. Therefore, executors should discuss with the attorney representing them in the handling of the estate the advisability of including a request in the initial application for probate of the will that the Court include: (1) a finding by the court that the account actually belonged to the decedent; (2) the contents does not violate the Stored Communications Act and other federal laws; (3) the user consented to disclosure; (4) disclosure is permitted by TRUFADDA; and (5) the disclosure is reasonably necessary for estate administration. Having made this recommendation, as Professor Beyer notes, “It is uncertain how judges will react to being asked to make these findings in these proceedings.”
Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.