New Hampshire’s recently adopted law on access to and administration of a deceased person’s “digital assets” provides some clarity on a complex issue.
Terms of service agreements and privacy policies govern access to social media and email accounts, and most expire when a user dies and are not transferable. Surviving family members are unable to access social media accounts or valuable digital assets, since most state laws that govern the actions of personal representatives or executors were enacted before email and social media became widespread and do not account for digital property. However, a majority of states have enacted laws addressing access to email, social media accounts, blogging or other website accounts, or other electronically stored assets, upon a person’s incapacity or death.
New Hampshire has recently adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which allows individuals to have more control over the management and disposition of their digital assets and electronic communications in the event of incapacity and upon death than what prior law provided. The law took effect on June 25, 2019.
The law balances the privacy rights of the deceased individual, the executor or other fiduciaries need for information stored on digital media, and the concerns of the custodians of social media accounts who are required to divulge such confidential “customer” information.
Some of the more important provisions are the following:
- An executor has no authority over the content of electronic communications (private email, tweets, chats), unless the deceased person has consented to disclosure.
- If a fiduciary does not have express permission through a will, trust, or power of attorney, custodians can look to the terms-of–service agreements to determine whether to comply with requests for access to a deceased person’s account.
- Custodians of social media accounts may: request court orders; limit their compliance by providing access only to assets that are “reasonably necessary” for administering the estate; charge fees to comply with requests for access.
Family members or others serving as executors, agents or other fiduciaries need to be aware of these new laws. Our firm has developed “best practices” on how to deal with digital assets in this ever changing landscape.
For more information on RUFADAA or general estate planning and administration, probate or trust matters please contact the attorneys at Welts, White & Fontaine PC. Please contact us by clicking here or by calling (603) 883-0797. Welts, White & Fontaine is one of Nashua’s largest, multi-practice law firms and serves the legal needs of both individuals and businesses in towns such as Amherst, Milford, Hudson, Brookline, Windham, Hollis, Merrimack, Litchfield, Bedford, Londonderry, Pelham, and, of course, Nashua.
Author: John S. Polgrean, Esq.
This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.