Estate Planning for Digital Assets (Part 3) – RUFADAA

This blog is Part 3 in a series of articles addressing estate planning for digital assets. See here to view the other blogs in our series.

The online world continues to evolve rapidly, and for many of us, our lives are ruled by the internet, the cloud, email, and digital assets. Our lives are a maze of “unique user IDs” and password-protected websites for our bank accounts and other important personal and professional items. The Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”) was enacted in part to help fiduciaries and tech companies navigate who should have access to a person’s digital assets after death. RUFADAA recognizes that we live in a largely digital world and extends a fiduciary’s access to manage an individual’s digital assets, while also protecting that individual’s privacy in certain electronic communications, unless the individual specifically consents in a will, trust, or other written record.

Here are four things to know about the RUFADAA:

1. Broadly defines the term “digital asset”. The first generation of legislation surrounding electronic communications generally covered email only, and fell far short of meeting the needs of decedents and their families. The RUFADAA now defines a digital asset as – essentially – all electronically-stored records of any kind.
2. Applicability. RUFADAA addresses access to digital assets for four different types of fiduciaries: (i) a personal representative for a will, (ii) a power of attorney, (iii) a conservator or guardian, and (iv) a trustee of a trust.
3. Clarifies priority. RUFADAA clarifies the priority given to conflicting instructions from a user. First priority is given to online tools to the extent the online tool allows a user to modify the specified instructions at any given time. Second priority is given to a user’s instructions in her will, trust, or power of attorney.
4. Addresses timing, notice, and method of disclosure. The custodian must comply with a request to disclose not later than sixty days after receipt of a proper request. When a custodian discloses digital assets pursuant to the RUFADAA, the custodian may work with a fiduciary to determine the extent of access based on a variety of factors, including: full access, limited access, copies, costs, associated burden, etc.

Fournier Legal Services was founded on a technology-based model and is uniquely positioned to assist you navigate the RUFADAA and other issues related to digital assets.

For assistance with any legal needs related to your business or estate planning, contact Fournier Legal Services for a consultation at jfournier@jeflegal.com or 860.670.3535.