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December 22, 2016

Estate Planning and Digital Assets

On September 29, 2016, New York State Governor Andrew Cuomo signed New York's digital asset legislation into law. Digital assets are defined as a person's digital property and electronic communications, including electronically stored content and online accounts. The new legislation was deemed necessary because issues surrounding the ownership and use of digital assets and their associated technologies have evolved much faster than the laws that govern them.

The Uniform Fiduciary Access to Digital Assets Act (UFADAA) was originally approved by the Uniform Law Commission (ULC) on July 16, 2014. Its goal was to remove barriers to a fiduciary's access to electronic records by reinforcing the concept that the fiduciary "steps into the shoes" of the account holder. The default rule under UFADAA to allow personal representatives and trustees access was met with opposition from Facebook, Google, and other service providers. They argued that the access granted under UFADAA was too broad. The service providers proposed stricter alternate legislation, called the Privacy Expectation Afterlife and Choices Act (PEAC). In response to PEAC, the ULC revised UFADDA's Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) on July 15, 2015. The default rule under RUFADAA is to deny access.

New York's digital assets legislation, Article 13-A of New York's Estates, Powers and Trusts Law (NY EPTL 13-A), is closely modeled after the federal RUFADAA, which extends to four types of fiduciaries: personal representatives, guardians, agents under power of attorney, and trustees. It also distinguishes between access to content of electronic communications and access to the catalogue of electronic communications. RUFADAA takes a three-tiered approach to assets: 

  1.  Users can utilize an online tool provided by a custodian to allow or prohibit custodians from disclosing information. Directions given by an online tool prevail over any other direction under a will, trust, power of attorney, etc. 
  2.  If no online tool was used, a user's direction in a will, trust, power of attorney, or other record prevails. 
  3.  In absence of any directions, the terms of service agreement applies.
NY EPTL 13-A applies to fiduciaries acting under wills, trusts, and powers of attorney, executors, administrators, and personal representatives, and guardianship proceedings. It does not apply to a digital asset of an employer that is used by an employee in the ordinary course of business. Under NY EPTL 13-A, if a custodian has the authority to grant access to a user's digital assets, the fiduciary shall be given access as long as he or she provides the custodian with a written request for disclosure; a copy of the death certificate, a certified copy of letters of appointment, and a copy of the document in which the user is granted access. The custodian can also require additional information enumerated in the statute. Separate disclosure provisions exist for agents under powers of attorney, trustees, and guardians.

The fiduciary is charged with the same duties as always: duty of care, duty of loyalty, and duty of confidentiality. In addition, the fiduciary in this case has additional duties that include being subject to applicable terms of service and laws, including copyright. The fiduciary's actions are limited by the scope of duties and may not be used to impersonate the user.

In sum, the treatment of digital assets is an evolving area of the law, and we are likely to see more changes and litigation around these types of issues in the coming years. Choices about how to handle digital assets are personal, and should be discussed with your attorney like any other aspect of an estate plan. It is important to express your desires to your attorney, and work with him/her to tailor the access that is granted to your fiduciaries to fit your wants and needs, keeping in mind that your fiduciary may require information regarding digital assets in order to adequately fulfill his/her role.


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