Earlier this year, we wrote about the first state to adopt the new, revised UFADAA (Uniform Fiduciary Access to Digital Assets Act) recommended statute. This statute makes clearer the ways which an estate executor and others can deal with your digital assets when you die.
Indiana, this week, joined the ranks of states that have decided to pass a “law that addresses the rights of a fiduciary, such as a personal representative, trustee, attorney-in-fact or guardian, to access digital property, such as online financial accounts, emails, texts, social media accounts and online document and picture storage.”
Since digital assets are a large part of many people’s estates, this new act has become more important. States are recognizing this and, as of this date, many have either adopted the act or are in the process of considering it.
For information about whether your state has adopted this important act yet, click here.
For more information about digital estate planning, check out our book “Access Denied: Why Passwords Are Now As Important As Your Will” or go to our website www.diesmart.com.
Last year, a comprehensive law was proposed by the National Conference on Uniform State Laws. That law places access to a wide range of digital assets on a par with access to traditional tangible assets.
“As the number of digital assets held by the average person increases, questions surrounding the disposition of these assets upon the individual’s death or incapacity are becoming more common. Few laws exist on the rights of fiduciaries over digital assets. Few holders of digital assets and accounts consider the fate of their online presences once they are no longer able to manage their assets.”
Nearly half of U.S. state introduced legislation in 2015 to enact this revised Uniform Access to Digital Assets Act (UFADAA). However, most of them have been unable to actually pass the law due to opposition from Internet and telecommunications companies. As of March 2016, only four state have enacted legislation based on this Act – Oregon, Wyoming, Tennessee and Florida.
Are you concerned about who will have access to your digital assets when you become incapacitated or die? Do you care whether family members can see your emails and other personal electronic correspondence? Would you prefer that loved ones can continue to maintain your Facebook account or do you want it shut down? These are just a few of the questions that the revised UFADAA may be able to address…only if your state adopts appropriate legislation.
For more information about digital assets, check out our book ACCESS DENIED or go to our website www.DieSmart.com.
Oregon became the first state to adopt the revised Uniform fiduciary Access to Digital Assets Act when Governor Kate Brown signed it into law on March 3, 2016. It will become effective on January 1, 2017.
The revised act is designed to ensure that account holders can retail control of their digital property and can plan for its disposition after their death. It also helps avoid circumstances where online service providers delete deceased’s accounts without authorization or refuse to hand over access and information to permitted fiduciaries.
Will your state be next?
For more information about the revised UFADAA, go to www.diesmart.com.
We’ve talked several times about the importance of managing your digital assets and making sure your loved ones will be able to access them when you’re gone.
UFADAA stands for Uniform Fiduciary Access to Digital Assets Act. It was developed by the National Conference of Commissioners on Uniform State Laws and is a recommended act that all states are encouraged to enact. The first approved version of the act did not meet the needs of the states and very few of them approved it. However, in late 2015, a revised act was passed. It has several important points:
- It gives internet users control. It allows users to specify whether their digital assets should be preserved, distributed to heirs or destroyed.
- It provides efficient uniformity for all concerned. Digital assets cross state lines. A uniform law ensures that fiduciaries (the people who are appointed to manage our property when we die or are unable to manage it ourselves) in every state will have equal access to digital assets and custodians will have a single legal standard with which to comply.
- It respects privacy interests. It prevents the companies that store our communications from releasing them to fiduciaries unless the user consented to disclosure.
- It works hand-in-hand with federal and state law. Fiduciaries must provide proof of their authority in the form of a certified document. Custodians of digital assets that comply with a fiduciary’s apparently authorized request for access are immune from any liability under statutes that prohibit unauthorized access. A fiduciary’s authority over digital assets is limited by federal law, including the Copyright Act and the Electronic Communications Privacy Act.
19 states are considering passing a law that encompasses at least some of what was recommended in the revised UFADAA. You should contact your representatives and urge them to enact this legislation. It will make it much easier for you to manage the digital estate of a loved one after he or she has died.
For more information about UFADAA and other issues related to your digital estate, check out our book ACCESS DENIED: WHY YOUR PASSWORDS ARE AS IMPORTANT AS YOUR WILL.