Do you remember a time when you first encountered the cultural relevancy of digital technology? For me, an avid movie watcher, that time was in 1998 when I watched You’ve Got Mail. There were other movies that exhibited the growth of digital technology,¹ but You’ve Got Mail demonstrated how personal digital technology could be. That movie proved two things: Nora Ephron was an amazing director, and our culture places great personal value on digital accounts. Our emails, social media accounts, subscriptions and every other digital account reflect who we are. They can be an extension of ourselves. What is surprising then is that 20 years after You’ve Got Mail, Oklahoma and other states are justDo you remember a time when you first encountered the cultural relevancy of digital technology? For me, an avid movie watcher, that time was in 1998 when I watched You’ve Got Mail. now asking the important question of what happens to those emails when you die?

Stories that received national attention answered this question, but not how many people hoped. For instance, Ricky and Diane Rash turned to Facebook for closure after their son, Eric, died by suicide in 2013.² Eric was a bright 15-year-old who aspired to go to Harvard Law School.³  Facebook denied their request to access their son’s Facebook account due to privacy laws.⁴ Or Dovi Henry who was a 23-year-old who passed away in 2014.⁵ His mother, Maureen Henry, has been in a constant legal battle with the custodians of Dovi’s email and social media accounts in an effort to find some clues about his death.⁶ Canadian courts have ordered those custodians to produce Dovi’s digital content and communications but that has been met with limited success.⁷

These tragic stories exemplify the risk of not having a structure in place for a personal representative of a decedent to obtain access to that decedent’s digital accounts. Maureen Henry said it best, “There needs to be an actual process for families, in my situation, to access their relatives' digital accounts.”⁸

In Oklahoma, there is only one statute that addresses this issue.⁹ “The executor or administrator of an estate shall have the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.”¹⁰ It is yet to be determined if this statute carries the necessary weight to force a custodian of digital assets to set aside federal privacy laws and give a fiduciary access to all of a decedent’s accounts. That question might be irrelevant though because Oklahoma may become the 46^th state to enact the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).¹¹  This article provides insight into the RUFADAA and explains the steps involved for a personal representative gaining access to a decedent’s digital accounts. Lastly, the article concludes with a brief discussion of the positives and negatives of enacting RUFADAA.

BACKGROUND

Currently introduced as HB 3711 in Oklahoma, RUFADAA is another brainchild of the Uniform Law Commission.¹² Its purpose is to give fiduciaries legal authority to manage digital assets and give custodians a method to disclose information to a fiduciary while protecting the user’s privacy.¹³ The RUFADAA is not just for people who talk about Bitcoin all day. The RUFADAA has universal applicability because of its broad definitions. For example, a digital asset is defined as “an electronic record in which an individual has a right or interest.”¹⁴ An account is defined as an “arrangement under a terms-of-service agreement in which a custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides  goods or services to the user.”¹⁵ Combine these two definitions, and RUFADAA applies to your Facebook and Google accounts, your Netflix account, your airline rewards account, even your Chick-fil-A account. All personal, digital accounts are subject to this law.

RUFADAA is not just about digital accounts, it also protects a decedent’s privacy. When the first iteration was introduced in 2014, the Uniform Fiduciary Access to Digital Assets Act (UFADAA), the proposed language gave a fiduciary broad access to the decedent’s digital accounts, including the content of electronic communications. Tech companies and privacy rights groups immediately claimed that UFADAA gave unauthorized access to the content of a decedent’s electronic communications in direct violation of the Stored Communications Act (SCA).¹⁶ The SCA generally prevents custodians from disclosing the content of a user’s electronic communications without that user’s consent.¹⁷ Feeling the pressure, the Uniform Law Commission relented and revised the UFADAA to require user consent for a custodian to disclose the content of an electronic communication.¹⁸ This point cannot be overstated because many provisions of the RUFADAA depend on whether the user gave consent. A user can consent in three ways: 1) through an online tool, 2) contained in a will, trust or power of attorney or 3) under a terms-of-service agreement.¹⁹ Any contradiction between the user’s consent is resolved by giving preference first to the online tool, followed by a will, trust or power of attorney and concluding with the terms-of-service agreement.²⁰

PROBATE PROCEDURE

In a probate, the personal representative who wants access to a decedent’s digital accounts must determine if that access will reveal the content of an electronic communication. This would include the body of emails and text messages. If a decedent consented to the disclosure of the content of electronic communications, then their personal representative will need to mail or email the custodian the following: a request for disclosure, a certified death certificate, certified letters testamentary (or equivalent) and a copy of the document purporting to give the personal representative authority to access the content of electronic communications.²¹ The custodian, however, may respond to the personal representative’s request and require an account identifier (username) and evidence linking the decedent with that account before it discloses anything.²² Or the custodian can go a step further and require the personal representative get a court order that finds the following: 1) the account was the decedent’s, 2) the disclosure does not violate the SCA and 3) the decedent consented to the disclosure of electronic communication or that the disclosure is reasonably necessary for the estate.²³

The key takeaway from this procedure is the importance of the decedent’s consent for the disclosure of the content of electronic communication. With that consent in writing, a personal representative should have little trouble getting access to all a decedent’s digital accounts. If the personal representative does not have the decedent’s consent, then the personal representative must get a court order that finds the disclosure is reasonably necessary for the estate. This is a high bar. Early cases have generally held that the content of electronic communications is not reasonably necessary for the estate.²⁴ Instead, the court will give the personal representative access to a catalogue of electronic communications.

A catalogue of electronic communications is “information that identifies each person with which a user has had an electronic communication, the time and date of the communication and the electronic address of the person.”²⁵ This does not reveal the content of the electronic communication. It basically gives the “who” and “when,” but leaves out the “what” and “why.” Judges are willing to order the custodian to provide a catalogue of electronic communications but keep open the possibility of the personal representative needing more if the catalogue reveals anything.²⁶

The procedure for obtaining a catalogue of electronic communications or any other digital asset (not including the content of an electronic communication) is similar to the one described above. It involves a written request for the disclosure, certified death certificate and certified letters testamentary.²⁷ The custodian can once again request more information (like a username) or even a court order.²⁸ But since the disclosure of a catalogue of electronic communication does not violate SCA,²⁹ the court order only needs to find the decedent in fact had an account with the custodian or it is reasonably necessary for the administration of the estate.³⁰ Since collecting and preserving the decedent’s assets are part of the probate process, this should be met.³¹

RUFADAA also graciously gives custodians a choice in how they disclose the digital assets to the personal representative. Specifically, a custodian may either give the personal representative full access to the digital assets or partial access sufficient enough for the personal representative to fulfill their fiduciary duty.³² Of course the custodian could also just give the personal representative a “copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.”³³ Additionally, the custodian does not have to disclose any material that was deleted by the decedent during their life and may require a reasonable administrative fee for providing the personal representative access.³⁴ Finally, if the personal representative requests just a subset of the decedent’s digital accounts, the custodian may claim that separating out that data is an undue burden.³⁵ If that is the case, then the custodian can petition the court to limit the subset by a date, provide for full access, provide for no access, or have the court separate it on camera.³⁶

ANALYSIS

There is much to like about the RUFADAA. Major endorsements from Facebook, Google and the AARP show the broad range of support, from custodians and users.³⁷ The RUFADAA provides a framework for grieving families like the Rash’s and Henry’s for closure in difficult times. This structure helps the personal representatives succeed in obtaining access to a decedent’s digital accounts because it is based on a system that was approved by the custodians holding the decedent’s data. For practitioners who practice in multiple states, the procedure will be consistent in probates crossing state lines, considering RUFADAA has been enacting in almost every state. Lastly, some may consider the privacy protections of a decedent’s electronic communications necessary in any statutory scheme. To understand this point, just think of an email or text message you have sent about your family member – do you want your personal representative seeing that?

The RUFADAA, though, has its fair share of drawbacks. Enacting a uniform law will never be a perfect fit for any state. For example, the RUFADAA contains references to the Uniform Trust Code (UTC).³⁸ Oklahoma has not enacted the UTC, so Oklahoma must adapt.³⁹

The RUFADAA will also increase probate fees. A lawyer will need to send a request to the custodian, along with the proper documentation for access to the decedent’s digital accounts. If the custodian requests a court order, then the probate lawyer would need to prepare additional pleadings to obtain that order. This might not be an issue in uncontested probates, but where the personal representative is closely monitored by suspicious heirs looking for a reason to claim a breach of fiduciary duty, this could give them that ammunition, especially if the personal representative wants access to a decedent’s digital accounts for sentimental reasons and not necessarily to increase the value of the estate, e.g. obtaining family photos.

Finally, some have argued that the RUFADAA and similar laws put the cart before the horse. Before a conversation can occur about how to access a decedent’s digital accounts, specifically social media accounts, states and legislators should consider the “role of platforms in shaping memory and continuity.”⁴⁰ Basically, what is the RUFADAA trying to preserve? Is that sense of self worthy of preservation even if it becomes distorted through the corporate power that social media companies wield?⁴¹ Instead of shoehorning access to digital accounts into a traditional property framework where everything is inheritable, access to digital accounts should take into account the user’s personal autonomy, their surrounding relationships or even their vulnerability.⁴² The RUFADAA does not take this nuanced approach.

So, the question from the beginning of this article remains: what happens to your emails when you die? The RUFADAA gives an answer. A better question then is whether Oklahoma will use that answer.

ABOUT THE AUTHORS

Christin Mugg is a founding partner for Mugg Winston. She concentrates on complex estate planning and planned charitable giving. She received her J.D. from the OCU School of Law in 1998, an MBA from OU in 1994 and is a chartered advisor in philanthropy.®

Brody Gustafson is a practicing attorney with Mugg Winston in Edmond, where he focuses on trust administration, probate and digital assets. He received his J.D. from the OU College of Law in 2019 and graduated with distinction.

---

1. For instance, the cult-classic Tron (1982) or the lesser known, Lawnmower Man (1992), or even the digital technology that rendered Jurassic Park (1993).
2. Fredrick Kunkle, “Virginia family, seeking clues to son’s suicide, wants easier access to Facebook,” The Washington Post, Feb. 17, 2013, at ¶2, www.washingtonpost.com/local/va-politics/virginia-family-seeking-clues-to-sons-suicide-wants-easier-access-to-facebook/2013/02/17/e1fc728a-7935-11e2-82e8-61a46c2cde3d_story.html.
3. Id.
4. Id. at ¶3.
5. “Ottawa mother's quest for her late son's passwords an uncharted legal road, say experts,” CBC, Nov. 24, 2019, at ¶3, www.cbc.ca/radio/outintheopen/diy-justice-1.5351892/ottawa-mother-s-quest-for-her-late-son-s-passwords-an-uncharted-legal-road-say-experts-1.5366292.
6. Id. at ¶10.
7. Id. at ¶14, 15.
8. Id. at ¶9.
9. 58 O.S. §269.
10. Id.
11. Uniformlaws.org.
12. Uniformlaws.org.
13. Uniform Law Commission, Prefatory Note to the Revised UFADAA, www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=112ab648-b257-97f2-48c2-61fe109a0b33&forceDialog=0 (accessed Sept. 29, 2020).
14. RUFADAA §2(10).
15. RUFADAA §2(1).
16. 18 U.S.C. §2701.
17. Id.
18. RUFADAA §7(4)
19. RUFADAA §4(a-c).
20. RUFADAA §4(a-c).
21. RUFADAA §7(1-4).
22. RUFADAA §7(5)(a-b).
23. RUFADAA §7(5)(c).
24. Matter of Coleman, 63 Misc. 3d 609, 96 N.Y.S.3d 515 (N.Y. Sur. 2019).
25. RUFADAA §2(4).
26. Coleman at 615.
27. RUFADAA §8(1-3).
28. RUFADAA §8(4).
29. 18 U.S.C. §2702(c).
30. RUFADAA §4(D).
31. 58 O.S. §251.
32. RUFADAA §6(a).
33. RUFADAA §6(a)(3).
34. RUFADAA §6(b-c).
35. RUFADAA §6(d).
36. RUFADAA §6(d).
37. See Endorsements listed for RUDAFAA, my.uniformlaws.org/committees/community-home?CommunityKey=f7237fc4-74c2-4728-81c6-b39a91ecdf22 (accessed on Sept. 29, 2020).
38. RUFADAA §12(2).
39. The version introduced in Oklahoma requires the production of the full trust agreement instead of certificate or memorandum of trust.
40. Shelly Kreiczer-Levy & Ronit Donyets-Kedar, “Better Left Forgotten: An Argument Against Treating Some Social Media and Digital Assets as Inheritance in an Era of Platform Power,” 84 Brook. L. Rev. 703 (2019).
41. Id.
42. Id.