Dec 17, 201512:34 PMLegal Login
with Mindi Giftos
A revised UFADAA keeps the PEAC(e)
(page 1 of 2)
After the drafting of two distinct statutes and more than a year of subsequent comment and stakeholder negotiation, a revised proposal from the Uniform Law Commission (ULC) is closer than ever to securing widespread support in establishing a statute governing third-party fiduciaries’ access rights to “digital assets.” The Revised Uniform Access to Digital Assets Act (RUFADAA) would govern fiduciaries’ ability to disclose the digital assets of trust settlors and deceased and incapacitated persons. Fiduciaries refers to persons such as trustees, estate executors (referred to in Wisconsin as “personal representatives”), and agents under financial powers of attorney that are directed to manage the assets of a trust, estate, or incapacitated individual, respectively.
As use of email, social media, and other online media has become ubiquitous, users are accumulating rights on these platforms, which are broadly defined as digital assets. The term is defined under RUFADAA as “an electronic record in which an individual has a right or interest,” but “does not include an underlying asset or liability.” Digital assets include data stored on a digital device such as a computer, tablet, or smartphone, content uploaded onto a website or app, or rights in other categories of digital property such as the items earned in online gaming. It does not, however, include underlying assets that can be accessed in a digital account. For instance, the funds of a bank account for which an individual maintains an online account are not considered digital assets.
RUFADAA is the product of a more than two-year endeavor undertaken by the ULC, which is a nonprofit association of attorneys that drafts standardized laws for enactment by state legislatures. In its current form, RUFADAA enables individuals to provide their fiduciaries the ability to review, inventory, and if necessary distribute digital assets in wills, trusts, and powers of attorney. It does not, however, provide fiduciaries with access to digital assets by default. Instead, individuals must take affirmative steps to provide their fiduciaries with this power in their estate planning documents. The shift in default provision from automatic access to requiring the affirmative granting of authority represents a compromise between the ULC and other stakeholders in the drafting process.