Digital Asset Planning: Who Will Care for Your Pokémon When You’re Gone?

Minnesota Joins Other States Enacting the Revised Uniform Fiduciary Access to Digital Assets Act

On May 22, 2016, Minnesota’s Governor signed a bill enacting the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). The new law takes effect August 1, 2016, and will be found in Minnesota Statutes Chapter 521A. The new law creates a clear procedure to enable access to or disclosure of online accounts and digital to a person’s fiduciaries. A person’s fiduciaries may include an agent under a power of attorney, a court-appointed conservator of a living person, a trustee of a trust, or a court-appointed personal representative of a deceased person’s estate.

At latest count (updated July 14, 2016), including Minnesota, 18 states have enacted RUFADAA into law, and 13 other states have introduced RUFADAA in their legislatures. My understanding is that many other introductions of RUFADAA are planned within the next year. An up-to-date list of RUFADAA introductions and enactments in state legislatures can be found on the Uniform Law Commission Web site. A good summary of RUFADAA is also available on the ULC Web site.

Even with the new enactment of RUFADAA in Minnesota and other states, it is important for individuals to plan ahead for access to or disclosure of their online accounts and during incapacity or after death. The federal Stored Communications Act (18 U.S.C. § 2702) creates privacy rights to protect the contents of certain electronic communications and files from disclosure by certain providers of electronic communication services or remote computing services. If the privacy protections of the Stored Communications Act apply, an online account service provider is prohibited from disclosing the contents of certain electronic communications and files unless an exception under § 2702(b) of the Act is met. Under § 2702(b)(3) of the Act, with the “lawful consent” of the user, an online account service provider may disclose the contents of the user’s electronic communications and files that are protected by the Act. RUFADAA provides a clear state law procedure for fiduciaries to follow to request access to or disclosure of online account contents and other digital assets.

So, a user’s “lawful consent” for disclosure of digital assets should be included in an individual’s estate plan, such as an individual’s financial power of attorney document for use while the individual is living, the individual’s will for use after the individual is deceased, and, if applicable, the individual’s revocable living trust (or irrevocable trust) for use if any digital assets are held in the trust. Under Section 4(b) of RUFADAA, it is also possible to sign a stand-alone document (what RUFADAA calls a “record”) to allow or prohibit disclosure to a fiduciary of some or all of an individual’s digital assets, including the content of electronic communications sent or received by the individual.

A document evidencing a user’s “lawful consent” for disclosure of digital assets is important to coordinate with the full fiduciary access and disclosure procedures under RUFADAA. In addition, there are other important issues that should be addressed as part of a comprehensive estate plan that an estate planning attorney can help plan and implement. For example, how should digital assets be distributed at death? Should family photos and videos be copied for each of the individual’s children? Should some beneficiaries be prohibited from receiving some of the digital assets? Should some of the digital assets be deleted on the individual’s death?

Because so many aspects of our personal and business lives have moved into the digital world, it’s important for an individual considering disclosure of and distribution of digital assets to seek legal advice from an attorney licensed to practice in the individual’s state as part of a comprehensive estate plan.

Eleanore

Eleanore

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