09/29/2014 - Planning and Managing the Virtual Part of Your Estate, Part IV

The Uniform Law Commission has released a new proposed act for enactment by the states called the Uniform Fiduciary Access to Digital Assets Act (UFADAA). The theory behind the new uniform act is if the fiduciary would have access to a tangible or intangible asset, then the fiduciary will also have access to a similar type of digital asset.

The uniform act, if enacted by a state, will allow executors or personal representatives to have complete access to a deceased persons digital assets. In addition, guardians or conservators, and agents under a power of attorney will have access to the protected person's digital assets. The powers include the power to "access, manage, copy, or delete digital assets and accounts."

The goal of the uniform act to remove barriers, such as federal privacy laws and state and federal computer fraud and abuse acts, which impede or prevent fiduciary access. Under the uniform act, access by fiduciaries is "authorized" under the Computer Fraud and Abuse Act and the Stored Communications Act section of the Electronic Communications Privacy Act. These laws currently are roadblocks to releasing content to fiduciaries.

The statute provides for an account holder to limit a fiduciary's access either by wishes expressed in a legal document or online by an affirmative election separate from the account-holder's agreement.

Note that the law is about access, not inheritance. Who owns the materials is still determined by the will and other instruments. The purpose of the new law is to allow the fiduciary to gain access to the information. The ownership of the digital assets is not changed.

19 states have enacted some sort of statute to help solve this problem, although none as broad as the proposed uniform act. The proposed uniform law is a standard recommended by the uniform commissioner for enhancement in alt. hastatus. Delaware was the first state to adopt the new Uniform Fiduciary Access to Digital Assets Act.

Pennsylvania currently has no statute. It could take years before there is legislation in Pennsylvania as well as other states. In the meantime, there is no substitute for handling your digital assets as described in the prior posts in this series by developing a digital estate plan, establishing an inventory of digital assets including hardware, software, and online accounts, and provide a way for agents or fiduciaries to access the inventoried assets.

"A uniform approach among states will provide certainty and predictability for courts, account holders, fiduciaries, and Internet service providers," the National Conference of Commissioners on Uniform State Laws stated. "It gives states precise, comprehensive, and easily accessible guidance on questions concerning fiduciaries' ability to access the electronic records of a decedent, protected person, principal, or a trust."

-Patti Spencer