When a client documents no directions for their digital assets, the default is not neutrality—it is the terms-of-service agreement of every platform they used. Under RUFADAA's hierarchy, absent an online tool designation or a provision in the estate planning documents, the custodian's terms control. Most of those agreements make accounts non-transferable and terminable on death. The consequences land on the fiduciary, and on the firm that drafted the plan.
1. The terms of service become the estate plan. Platform defaults typically call for deletion or closure rather than transfer. A client who left no direction has effectively adopted whatever position each provider took, across dozens of accounts, none of which they read.
2. Content is unreachable. RUFADAA permits disclosure of the content of electronic communications only where the user affirmatively consented, because the Stored Communications Act otherwise prohibits it. Without express consent in the instruments or through an online tool, a personal representative may obtain the catalogue—correspondents and timestamps—and nothing more. Emails containing account confirmations, tax records, and business correspondence stay closed.
3. Administration costs multiply. Each custodian sets its own documentation requirements, may demand a court finding, and has 60 days to respond. Repeated across a client's accounts, this converts what should be routine marshaling into months of correspondence, petitions, and fee-generating work the beneficiaries did not anticipate and often resist paying.
4. Assets with no custodian are simply lost. RUFADAA compels custodians. It does nothing for self-custodied cryptocurrency, hardware wallets, encrypted local files, or anything else secured by a key the client alone held. Domains lapse, monetized accounts and their revenue streams terminate, and royalty-producing digital works become unadministrable. There is no petition that recovers a seed phrase.
5. The fiduciary faces exposure in both directions. A personal representative cannot marshal assets they cannot identify, yet remains subject to the duty to do so. Families frequently close the gap by using credentials they happen to have—an approach that may constitute unauthorized access under the Stored Communications Act, the Computer Fraud and Abuse Act, and the applicable terms of service, and that can compromise the fiduciary's position if later challenged.
6. Dormant accounts stay open and billing. Unmanaged profiles remain live, subscriptions continue charging the estate, and the decedent's identity remains available for fraudulent use. Account closure for inactivity may follow eventually, taking irreplaceable content with it, but rarely before the estate has closed.
The drafting response
The remedy is documentation captured during planning rather than reconstruction during administration: an inventory of accounts and digital property, express RUFADAA authority and content consent in the will, trust, and power of attorney, specific digital asset authority for the agent, a record of any custodian-side online tool designations already in place, and access instructions and credentials stored where the named fiduciary can reach them.
Eternal Pro structures that capture as part of standard intake, and maintains it as an active record your clients update over time. This helps to ensure their plan reflects the accounts they hold at death, not the accounts they held at signing.
The preceeding is general information for legal professionals and not legal advice. RUFADAA has been enacted with state-level variations in 48 out of 50 states. Always confirm the governing statute in your jurisdiction.
united states
