The duties of a personal representative are to pay expenses, manage an estate and distribute assets to the heirs. As the statute states, a personal representative “shall take possession or control of the decedent’s property … for purposes of administration.”1 However, in our app-driven society, these traditional duties can face a technological barrier: digital assets.
Digital assets are a 21st century invention and have grown rapidly as industries continue to promote the ease of paying bills through apps or online. As such, digital assets did not need to be considered in traditional estate plans. It is only within recent years that wills have started to include clauses covering digital assets. This means that lawyers advising personal representatives can face a unique problem. While wills are often updated to account for changes in circumstances, such as marriage, divorce or the birth of a child, wills do not keep pace with technological advances. As a will can be probated several decades after its creation, many estates will be governed by wills that are silent on digital assets.
When there is no clause in a will, the default rule controls. In 2017, the Supreme Judicial Court (SJC) outlined the default rule in Yahoo v. Ajemian.2 The SJC ruled that the Stored Communications Act did not prohibit release of a decedent’s email with the personal representative’s consent, However, an open question remains: Is an internet company required to comply with a personal representative’s request to release user information? The SJC determined that this was an issue of fact for the Probate and Family Court to consider. As terms of a user agreement are the facts, a personal representative could have to fight a corporation for information.
A simple solution would be to keep a list of passwords with the will. However, as passwords are frequently changed or forgotten, this list could be easily outdated by the time the estate is probated. The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) would solve the problem, giving personal representatives and other fiduciaries access to information by virtue of their roles. Massachusetts is one of only five states that has not enacted a version of the RUFADAA. This serves as a disadvantage to fiduciaries in trying to perform their duties effectively and internet providers in crafting a standard user agreement for users in multiple states.
The Massachusetts version of the RUFADAA currently pending in the Legislature has gained support from various bar associations.3 However, the bill has been overshadowed by other issues in each of the three sessions in which it has been introduced and has not gained much attention outside legal circles. Digital assets will become a larger part of personal representatives administration. The traditional estate plans that govern will fail to provide guidance on a contemporary invention. It is up to the Legislature to provide estates with a way to move forward.
Kathryn M. Barry is an associate attorney at Blake & Associates, focusing on estate administration, estate planning and trust administration. She received her JD from New England Law Boston and her LLM from Boston University.
1 Mass. G.L., § 3-709.
2 Ajemian v. Yahoo Inc., 84 N.E.3d 766 (Mass. 2017).
3 Massachusetts Lawyers Weekly, Editorial (March 12, 2020).