The Uniform Fiduciary Access to Digital Assets Act (UFADAA) was approved on July 16, 2014 by the Uniform Law Commission (ULC). The purpose of the UFADAA is to solve the problem of lack of access, control, or copies to and of digital assets and accounts by fiduciaries. Banking, investment securities, agency, probate, trust, and fiduciary laws are not to be otherwise affected by UFADAA.
The replacement of tangible assets such as documents previously stored in paper files and filing cabinets with documents stored electronically has created problems for fiduciaries needing access to such assets.
Digital assets include online bank accounts, online investment accounts, online gaming items, online photos and videos, online digital music, backups to the cloud, email accounts and the like. The value of these assets can easily exceed the value of personal assets that may be transferred without probate. That value is currently $75,000 (A.R.S. § 14-3971) in Arizona. Access to these assets can be quite difficult once a person is unable to handle his affairs or is deceased.
The fiduciaries who are considered under UFADAA include personal representatives of a deceased person’s estate; guardians or conservators of a protected person’s estate; agents under a power of attorney; and trustees. Fiduciaries acting pursuant to their powers are a separate and distinct class than family members or friends seeking access and should be treated as such by the holder’s of these assets.
The main thrust of UFADAA is that if a fiduciary would have access to and control of a tangible asset, that fiduciary should have access to and control of similar assets held as a digital asset. A generally uniform approach among the states to this issue may be the result of UFADAA approval. The issues are expected to be studied and addressed by each adopting state over time.
In the meantime, estate planners will serve their clients well by incorporating a Digital Power of Attorney into the package of documents to be prepared for their clients and by including the appointment of a separate Digital Asset Personal Representative within their client’s Last Wills.