Monday, September 26, 2016

Arizona's Revised Uniform Fiduciary Access to Digital Assets Act

Arizona’s Revised Uniform Fiduciary Access to Digital Assets Act, which became effective on August 8, 2016, can be found in Title 14, Chapter 13 of the Arizona Revised Statutes. Under this new law a fiduciary, as defined in 14-13102 to include a successor personal representative, conservator, agent or trustee, will have the ability to access, manage, and distribute the deceased or incapacitated person’s digital assets. The purpose of the act is to solve the problem of the inability of a fiduciary to access digital assets which include images, photos, videos, and text files, which are stored either locally on a device owned by the user, or on devices that are accessed by way of the internet, such as when a user stores information “in the cloud.” Digital assets also include social media and e-mail accounts.

Pursuant to 14-13104.A., “[a] user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user's digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney or other record.” The new law makes the user’s online instructions legally enforceable and overrides any contrary provision that may exist in a user’s other estate planning documents if the online tool allows the user to modify or delete a direction at all times.

A.R.S. 14-13104.B. allows a user to give legally enforceable directions for the disposition of digital assets in a will, trust, power of attorney, or other written record “[i]f a user has not used an online tool to give direction under subsection A of this section or if the custodian has not provided an online tool.” Note this includes the content of electronic communications sent or received by the user. If the user has not provided any direction, either by using an online tool or traditional estate planning documents, the terms of service will determine whether a fiduciary may access a user’s digital assets. Finally, if the terms of service do not address accessibility by a fiduciary, the default rules in the new law apply, and they can be found in A.R.S. 14-13107, 14-13108, 14-13109, 14-13110, 14-13111, 14-13112, 14-13113, and 14-13114.