Technology and the Law – The Fiduciary Access to Digital Assets Act

Visit here for some background on the definition and legal status of digital assets.

The Uniform Fiduciary Access to Digital Assets Act (UFADAA).

In July of 2014, the Uniform Law Commission completed and approved the UFADAA, which specifically addresses the rights of fiduciaries to access and manipulate digital assets on behalf of principals or decedents. The application of the law is limited to personal representatives of decedent’s estates, court-appointed guardians or conservators, trustees, and agents under powers of attorney. The UFADAA defines a digital asset as an electronic record, which includes any type of information stored electronically on a devise or uploaded to a website, and rights in digital property.

Pennsylvania Senate Bill 518

On February 20, 2015, Pennsylvania Senator and Senate Majority Leader Dominic Pileggi introduced SB518, an addition to the Pennsylvania Probate, Estates and Fiduciaries Code (Title 20 Pa.C.S.A.).

The proposed Pennsylvania legislation is based largely on the UFADAA. Individuals would have authority to appoint fiduciaries to manage digital assets in the same ways such fiduciaries may currently be appointed to manage physical property. The proposed legislation also imposes the same fiduciary duties on agents and personal representatives as currently exist in Pennsylvania law: the fiduciary must still act for the benefit of the principal or estate. In addition, the proposed law offers the same immunity from liability for fiduciary actions taken in good faith.

Interestingly, if you did choose an agent through a terms-of-service agreement with a particular online application or company, the proposed law would defer to your choice. In other words, if you appointed a Facebook Legacy Contact, that person would maintain the ability to serve because you specifically selected them. But if you never appointed someone to manage your digital assets as allowed by a terms-of-service agreement, or you took that step for some internet applications and not others, then the law would allow your agent, guardian, conservator or executor to access and manage your digital accounts.

The proposed law goes a long way toward providing structure and guidance for managing our digital assets, a new form of property that will continue to expand and evolve in the digital age.

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