Texas has enacted a comprehensive statutory framework governing fiduciary access to a decedent’s or settlor’s “digital assets.” This framework is designed to balance estate and trust administration needs with user privacy, federal law, and service‑provider policies. In practice, Texas’ enactment of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) governs how fiduciaries may obtain records such as emails, cloud files, photos, social‑media content, cryptocurrency, domain names, and online financial records. The statute draws a sharp distinction between the catalogue of assets and the “content” of electronic communications, and it establishes a clear priority‑of‑instructions regime for determining the user’s intent.

Under RUFADAA, a user’s directions given through an online tool provided by a custodian take precedence. Examples include custodian‑provided legacy‑contact designations or inactive‑account‑manager settings that expressly authorize or restrict disclosure. If no online tool applies, the governing instrument (i.e., Last Will and Testament, Trust Agreement, or Power of Attorney) controls next. Affirmative language authorizing fiduciary access to digital assets is critical. Absent either an operative online tool or governing‑instrument provision, the custodian’s terms‑of‑service may significantly limit disclosure.

The distinction between content and non‑content data is foundational. Content such as the body of emails or direct messages generally requires the user’s affirmative, express consent before a custodian may disclose it to a fiduciary. Non‑content records, which are often described as a “catalog” of communications or metadata, may be accessible under a lower threshold, enabling a fiduciary to identify accounts, dates, and recipients without revealing message substance. This distinction reflects federal privacy laws and aims to balance estate administration needs with confidentiality.

Custodians typically require specified formalities to invoke RUFADAA. Common requirements include a written request specifically identifying the account, a death certificate, and evidence of authority (e.g., letters testamentary or of administration, or a Certificate of Trust). Where content is sought, the fiduciary will also typically need the user’s express consent. Custodians may limit disclosure to what is reasonably necessary, provide partial access, or deliver a download or account archive rather than credentials, and they may impose reasonable administrative charges.

For estate planners, proactive drafting remains the most effective tool. Wills, trusts, and powers of attorney should include explicit authorization for fiduciaries to access, manage, and dispose of digital assets, with separate, unequivocal consent to obtain the content of electronic communications. Clients are encouraged to maintain an up‑to‑date inventory of key digital accounts and use provider tools to designate legacy contacts or post‑death preferences. Password managers can aid continuity but should be used with caution. Remember, there’s no database for your fiduciaries to search for your digital assets.

Fiduciaries administering estates and trusts should act promptly to secure digital assets before they are deleted or accounts deactivated under provider policies. They should document their legal authority, tailor requests to the specific data categories needed, and be prepared to demonstrate user consent where required. Special care is warranted for assets with intrinsic value or transfer mechanics, such as cryptocurrency wallets, monetized online accounts, and domain registrations.

In summary, Texas law facilitates fiduciary access while preserving privacy and honoring user intent. With careful planning and precise, well‑supported requests, executors,  trustees, and attorneys-in-fact can navigate these issues effectively and lawfully.

Key Takeaways for Clients

1. Update your estate planning documents. Ensure your Will, Trust, and Power of Attorney include explicit language authorizing fiduciary access to digital assets — and separate, express consent for disclosure of electronic communication content.
2. Create and maintain a digital asset inventory. Keep a current list of your key digital accounts (usernames, passwords, and security question answers) and use each provider’s legacy-contact or inactive-account tools to designate post-death preferences.
3. Act quickly after a death or incapacity. Fiduciaries should move promptly to identify and secure digital assets before custodians take action making it more difficult, or impossible, to access.