The proposed Uniform Fiduciary Access to Digital Assets Act would make it easier for executors and others to access the growing body of electronic data Illinoisans leave behind.

As our lives are increasingly played out on the Internet, many of our important papers and documents have moved from the physical world to the cloud. When someone dies, they leave behind a wealth of data - information that would have once been stored physically.

In our digital age, however, service providers like Facebook and Yahoo have been hesitant to relinquish control of digital assets to anyone but the account holder. This has caused problems for many families and estate administrators.

Senate Bill 1376, which is currently before the General Assembly, is designed to enable access to the digital assets of a deceased individual. It would bring to Illinois the Uniform Fiduciary Access to Digital Assets Act ("UFADAA"). While some have raised privacy concerns about giving unfettered access to family members, the Act grants only fiduciaries access to a decedent's digital assets, and only if permitted under federal law.

Before the advent of the information age, all important documents resided in the physical world. They became part of the decedent's estate and the executor could view them, often gleaning information useful to the estate's administration. Now that many of us have moved our personal affairs to the cloud, such information is increasingly difficult for fiduciaries to access.

Benjamin Orzeske, legislative counsel for the Uniform Law Commission, believes that the proposed uniform statute will help bridge the gap between state and federal laws. Since fiduciary law is at the state level, service providers operating on a national level will have a more predictable legal environment, he says.

Privacy concerns

Still unresolved is how state versions of the UFADAA will intersect with the Stored Communications Act, 18 U.S.C §2701, et seq. The SCA prohibits providers like Facebook and Google from releasing stored data except under specific circumstances. No one knows yet "how state fiduciary laws apply to the SCA when the fiduciary steps into the shoes of the decedent," Orzeske says. He thinks most technology companies would prefer that a fiduciary exemption be made a part of the SCA.

The American College of Trust and Estate Council has requested that Congress make that change. As it is currently drafted, the UFADAA requires the disclosure of digital assets to the extent that they can be disclosed under the SCA at 15 U.S.C. § 2702(b). While the SCA does not specifically provide for an agent authorizing the release of the content of an electronic communication, the legislative history of the SCA appears to indicate that Congress intended such access.

Some observers have expressed concerns about the UFADAA, fearing that it could expose sensitive, private data to the decedent's family or other parties. Orzeske points out that the statute specifically limits access to digital assets to fiduciaries, personal representatives, agents, and trustees. "An easy solution to the problem is to not name a family member as the executor to your will," he says.

Even if you die intestate and a family member is appointed to administer your estate, he or she is still subject to the fiduciary duties imposed under the law. Those duties include the duties of confidentiality, care, and loyalty - state law provides remedies for a violation of fiduciary duty.

Fiduciary access to sensitive, private information is "not a new problem," Orzeske says. In the case of a deceased doctor or attorney, the fiduciary must view sensitive patient and client files. Because the fiduciary has stepped into the shoes of the decedent, he or she presumably must comply with the terms of the decedent's will and state law.

Broader reach than the SCA

Orzeske notes that the UFADAA applies to a much broader range of digital assets than the SCA. The federal law only applies to electronic communications, which are a small subset of data that a fiduciary might need to access.

For example, electronic banking and tax records fall under the definition of digital asset but are not electronic communications. Files on Dropbox or Google Drive and other cloud storage services also are likely outside the scope of the SCA. Even a job as simple as closing a decedent's Netflix account to stop monthly billing can be made easier by the UFADAA, says Orzeske.

Also, although people assume the SCA covers emails and text messages, Orzeske points out that it's hard to know Congress's intent in 1986 - neither email nor text was widely used (if at all). The UFADAA grants access to email or text messages only if it is allowed under the SCA. It remains an "open question," he says, one that "hopefully Congress will answer by amending the SCA. Otherwise, we will likely see a test case."