‘Til Death Do Us Part – Digital Assets Have a Life Of Their Own

Ever wonder what will happen to your Facebook account when you die? Here is your answer: TRUFADAA.

It stands for Texas Revised Uniform Fiduciary Access to Digital Assets Act, which is found in Chapter 2001 of the Texas Estates Code and sets out the scheme for handling digital assets when a person dies or becomes incapacitated. TRUFADAA replaced the original Uniform Fiduciary Access to Digital Access Act, an unfortunate experiment that is best forgotten.

Your Facebook account is a digital asset. So is your Twitter account, your Snapchat account, your blog, and your electronic access to online financial institution and service accounts.

Because a digital account is an asset, it would stand to reason that you could simply leave the account to a beneficiary in your will or designate an agent to handle it in your power of attorney. That was the thought process behind the original uniform act that gave all of those documents precedence over the providers’ terms of services, those lengthy incomprehensible pages that you click through before you sign up for the service.

That law did not please the Internet service providers, who wanted their proprietary terms of services to prevail. They openly opposed the original uniform act, which led to turmoil for those poor executors and agents caught in the crossfire.

TRUFADAA came to the rescue as an acceptable compromise that provided a very simple plan.

If the Internet service gives you an online tool to direct the provider to disclose or not disclose some or all of your digital assets, and you actually use that tool, then the online tool overrides any contrary directions contained in your will, trust or power of attorney.

If the internet service does not give you an online tool, or if you do not use a provided online tool to give directions, then you may use your will, trust or power of attorney to give directions that allow or prohibit disclosure.

Any directions that you give, either using the online tool or in your will, trust or power of attorney, override contrary provisions in the service’s terms-of-service agreement.

The upshot is that if you do not take affirmative steps, either through the online tool or your estate planning documents, to manage disclosure of your digital assets, then you will be stuck with the Internet service’s rules.

Where can you find the online tool for a particular service? Many services place it in “advanced settings,” “security settings” or “manage account.”

If you have a lot of digital assets, then you may want to take matters a step further and create a trust to hold them. This has the benefit of easily passing management of the assets to a successor trustee if you become incapacitated or die.

The important point is to make a decision on how your digital assets will be handled and then follow through. Otherwise, your digital assets may die when you do.

Hammerle Finley Law Firm. Give us a call. We can help.

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The information contained in this article is general information only and does not constitute legal advice.