Digital Assets Act and the Uniform Law Commission

Earlier in 2016, a number of states passed legislation that gives a decedent’s personal representative access to the deceased person’s digital assets. The 20 states that have enacted such legislation based it on the Uniform Fiduciary Access to Digital Assets Act (UFADAA), a model act proposed by the Uniform Law Commission. The UFADAA defines digital asset as “an electronic record in which an individual has a right or interest.” Those electronic records can include computer files, web domains, and virtual currency. Access rights are provided for four types of fiduciaries, including personal representatives, trustees, conservators, and agents under power of attorney.

Not to worry though, this does not automatically grant your trustee access to your Facebook account and text messages. The Act takes some steps to protect the privacy of decedents and individuals placed under conservatorship. In order for a fiduciary to access email, texts, and social media accounts, the individual must have expressly consented to such disclosure in a will, trust, power of attorney, or other record.

The UFADAA is just one of the many pieces of legislation proposed by the Uniform Law Commission (ULC). The ULC is a non-profit association that seeks to bring clarity and stability to critical areas of state statutory law, by providing states with non-partisan, carefully drafted legislation. Members of the ULC must be lawyers qualified to practice in their state, and include practicing lawyers, judges, legislators, and law professors. The Commissioners are appointed by state governments, and provide their research and drafting expertise entirely pro bono. The ULC cannot enact laws, and may only propose uniform state laws in areas of state law where uniformity is desirable and practical. The Commissioners also work to keep state laws up to date by addressing timely and developing issues. The ULC addresses a wide variety of topics, which can be viewed on their website. Studying one of the proposed uniform laws, and suggesting changes or discussing whether it should be adopted in your state could be an interesting paper topic.

Legislation to enact the UFADAA in Ohio was introduced on September 27, 2016, see SB 358.