Trustees and personal representatives often need to access digital assets to carry out a deceased or incapacitated person’s wishes. However, industry and consumer groups have been opposed to allowing such access, based on privacy concerns.
To address these issues, Colorado has recently enacted the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”), which will be effective as of August 10, 2016.
This Act outlines the circumstances under which a fiduciary may have access to digital assets, while also considering the privacy interests of the deceased or incapacitated person.
RUFADAA also takes into account the interests of the custodians of the digital assets. These may include entities such as banks, Google, Yahoo, and Facebook.
RUFADAA places high importance on the intent of the deceased or incapacitated person, and limits a fiduciary’s automatic access to the content of the person’s digital communications, absent their consent or a court order.
RUFADAA does nothing to change a fiduciary’s duties with respect to his actions on behalf of the deceased or incapacitated person. Instead, RUFADAA provides that a fiduciary’s duties with respect to managing the person’s tangible personal property also apply with respect to managing the person’s digital assets.
Reference: Trust Administration: Colorado’s New Digital Assets Act, National Law Review, July 5, 2016.