Digital assets encompass a large category of electronically stored data, be it online, on a device, or on a computer. Some examples include: online accounts, electronic communications, social media sites, digital photos, music, or data remotely stored on the cloud. Though permeated throughout our daily lives, our digital footprint is often an overlooked asset during the estate planning process. This can prove troublesome, especially in situations where a fiduciary (such as an executor, trustee, guardian, or agent under a power of attorney) has no knowledge of, or access to such assets.
Recognizing the need to establish guidelines for fiduciaries who may need to gain access to and/or manage an individual’s digital assets, Ohio recently adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).
Major highlights of RUFADAA, which goes into effect on April 6, 2017, include:
- Defining a “digital asset” as an “electronic record in which an individual has a right or interest.” However, digital assets will not include an underlying asset or liability unless the asset or liability is itself an electronic record.
- Allowing individuals to grant legal authority to others in order to gain access to one’s digital assets and the content of electronic communications;
- Expanding the authority that an agent could have under the statutory form of power of attorney to be able to deal with digital assets and electronic communications;
- Recognizing the use of an “online tool” which may be offered by the service provider that maintains a digital asset (defined as “custodians” under the law), where the user can direct the custodian to either disclose (or not disclose) some or all of the user’s digital assets to a fiduciary, including electronic communications from/to the user;
- If no online tool is used, individuals may allow or prohibit in a will, trust, power of attorney, or “other record,” disclosure to a fiduciary of some or all of a user’s digital assets, including the content of electronic communications sent or received by the user; and
- Providing a framework to resolve conflicting instructions about handling digital assets across terms-of-service agreements, online tools, and/or a will, trust or power of attorney.
With the fast-paced advances occurring in the digital world, the likelihood increases that you own some form of digital asset. If you have concerns on whether the new law or digital assets impact your estate plan, we invite you to contact your attorney at Stark & Knoll, who will be happy to provide you with any answers to your questions.