Why fiduciaries are often shut out of email and online accounts, what California’s 2025 amendment changed, and what your documents need to say
A generation ago, settling a parent’s affairs meant gathering paper: statements, a checkbook, a folder in a desk drawer. Today most of that record lives in email and online accounts. Statements arrive electronically, bills pay themselves, and photographs sit with a cloud provider. When someone dies or loses capacity, the trustee, executor or agent who steps in usually cannot simply log in, and in many cases is not permitted to.
What a digital asset is
For planning purposes, a digital asset is anything you reach with a login, password, code or key, or anything stored on a device or in the cloud. That includes online banking and brokerage access, email, cloud storage, social media, subscriptions and automatic bill payments, domain names and business websites, loyalty programs, authenticator apps and cryptocurrency. The accounts people forget are the ones that cause trouble: the autopay that keeps charging a closed card, or the email address that receives the only statements for an account no one else knew existed.
Why fiduciaries are shut out
Federal law, principally the Stored Communications Act at 18 U.S.C. section 2702, treats the content of electronic communications as private. A provider generally may not disclose that content without the lawful consent of the user. Terms of service add their own restrictions, and some providers will close an account rather than risk a disclosure. A spouse or adult child who logs in with a known password may also be acting outside the account’s terms. The practical result is that consent has to be given in advance, in a form the provider will accept.
The order of priority under California law
California adopted the Revised Uniform Fiduciary Access to Digital Assets Act as Probate Code sections 870 through 884, effective January 1, 2017. Section 873 sets the order in which a user’s instructions control.
First, if the provider offers an online tool that lets you direct disclosure, and you use it, that direction overrides a contrary instruction in your will, trust or power of attorney. Second, if you have not used an online tool, your will, trust, power of attorney or other record controls. Third, if you have given no direction at all, the provider’s terms of service govern.
In practice, a setting chosen years ago on a phone can override a carefully drafted trust. Apple’s Legacy Contact, Google’s Inactive Account Manager and Facebook’s legacy contact setting are all tools of this kind, and each has limits. Apple’s Legacy Contact, for example, does not reach passwords stored in the keychain or purchased media. The settings should be chosen to match the estate plan, not in isolation from it.
What changed on January 1, 2025
As originally enacted, California’s act applied only after death. An agent acting under a durable power of attorney during the principal’s incapacity had no clear route to digital accounts. Senate Bill 1458, effective January 1, 2025, added agents and conservators to the act.
The amendment draws a line between the list and the content. Under Probate Code section 879.2, an agent with either specific authority over digital assets or general authority to act for the principal may obtain the catalogue, meaning the list of communications and accounts, and digital assets other than the content of communications. Under section 879.1, the content of email and messages is disclosed only to the extent the power of attorney expressly grants the agent authority over the content of electronic communications. A general grant of authority therefore reaches the list but not the messages.
A conservator is in a different position. Under section 879.3, the court may grant a conservator access to digital assets only after a noticed hearing, and even then the statute provides for disclosure of the catalogue and other digital assets, not content.
What your documents should say
Consent to disclosure of content belongs in the trust, the will and the durable power of attorney themselves. A trustee seeking content must give the provider a certified copy of the trust instrument, or a certification of trust under Probate Code section 18100.5, that evidences the settlor’s consent to disclosure. An agent must give the provider the power of attorney that expressly grants the authority. A separate letter of wishes can restrict disclosure, but for a trustee or an agent it does not substitute for consent in the instrument the provider is entitled to see. An executor may rely on another written record of consent, but the safer course is to state the consent in every instrument.
Most estate plans signed before 2017 say nothing about digital assets. Many powers of attorney signed before 2025 grant general authority but not the express content authority section 879.1 now requires. Both are worth reviewing.
Three layers
We recommend a simple system in three layers, and none of them works on its own. The estate documents grant the authority. An inventory of accounts, listing the service, the username, a short description and where the credentials are kept, is the map. The master key, meaning the passwords themselves, is the access. Passwords never go in the estate documents or on the inventory. They belong in a password manager or a sealed envelope in a safe, with the location noted in the plan.
Cryptocurrency held in a self custody wallet needs separate attention, because there is no custodian a fiduciary can ask for access. If the private key or recovery phrase is lost, the asset cannot be recovered.
Case study: an agent who could see the list but not the mail
A retired engineer suffered a stroke and could no longer manage his affairs. His wife was his agent under a durable power of attorney signed in 2012, with broad general authority but no mention of digital assets. Nearly every statement he received came by email, and she did not know which institutions held his accounts.
Because his power of attorney granted general authority, she could obtain the catalogue from his email provider under section 879.2. The list of senders and dates showed which banks, brokerages and insurers were writing to him, and that was enough to locate the accounts and present the power of attorney to each institution. She could not obtain the content of the messages, because the document did not expressly grant that authority, and her husband no longer had the capacity to sign a new one. The catalogue was sufficient for most of what she needed, though not for two matters that turned on the text of his correspondence.
She updated her own plan the following month, with express consent to disclosure of content in her trust, her will and her power of attorney.
How we can help
Tomer T. Gutman speaks on digital assets to client audiences and financial advisors and drafts the consent language described here into the firm’s trusts, wills and powers of attorney. For existing clients, a review usually means an amendment to the trust and a new power of attorney rather than a new plan. For trustees and agents already in the middle of an administration, we prepare the requests and certifications the providers require and, where the documents fall short, the court petition.
This article is general information about California and federal law as of its date. It is not legal or tax advice and does not create an attorney-client relationship. Case studies are composites drawn from the kinds of matters the firm handles; names, places, amounts and other details have been changed, and the result in any matter depends on its own facts. Tax results should be confirmed with your CPA. Responsible attorney: Tomer T. Gutman, Worden Williams LLP, 462 Stevens Avenue, Suite 100, Solana Beach, California 92075, (858) 755-6604.
