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Digital Assets – Will Access Die When You Do

| February 05, 2019

Digital Assets – Access and Disclosure

Our increasingly digital world presents all kinds of wonderful benefits, along with all kinds of additional complexity. I would guess most people today engage in using social media, online banking, and/or digital brokerage accounts. However, they may not be aware they are also creating “digital assets” along the way. Digital assets include email, online blogs, web sites, Internet domain names and the associated DNS records; anything that is stored electronically on a computer or a digital device like a flash drive. Access to these accounts is often restricted by the provider to strictly the “user” who has consented to their online agreements. This can make access to these important assets very difficult in the event of an unexpected death or disability of the user.

There are federal laws that make it illegal for someone other than the owner of the asset (not necessarily the device) to access these assets. And some states, but not all at the moment, also have their own statutes that address how digital assets can be accessed by an alternate, named party. Missouri attorney, Gary Hansen, agreed to republish an article he wrote on this topic, which may help financial advisors assist their clients as it relates to their “digital assets”. For specific action steps, be sure to contact your own legal representative about the relevant laws in your state.

 

RUFADAA: What the heck is that?

By Gary Hansen

© 2018 Hansen Law P.C.

Contrary to what you might think, RUFADAA is not a major food group for vegans. RUFADAA is an acronym for the Revised Uniform Fiduciary Access to Digital Assets Act. While you may have never heard of it, you had better hope that the State of your residence has adopted it and that your attorney is aware of it. In our planning for the events of life we address the handling and transfer of both tangible and intangible assets. Up until the start of the twenty-first century, intangible assets were things like investments – stocks, bonds, etc. Twenty years ago, very few individuals had any digital assets. Today, almost everyone has digital assets. Digital assets have become so common that many people don’t even recognize they have digital assets. As such, there has been little attention addressed to the handling and transfer of digital assets.

According to RUFADAA, a digital asset means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record. This includes a number of things. If you do online banking, your bank account becomes a digital asset. Your records of paying bills online are digital assets. Your PayPal account is a digital asset. Your participation in social media is a digital asset. If you store records or photos online these are digital assets. If you have an email account or an Internet domain, these are digital assets. If you have a web site, this is a digital asset. Your online account with Amazon or Lands End is a digital asset. And of course, anything that is saved on your computer, tablet, or smart phone is a digital asset.

The significance of this is that there are laws that restrict the access and disclosure of digital assets. Federal laws that do this includes the Stored Wire and Electronic Communications and Transactional Records Act. It prohibits the disclosure of stored communications without the consent of the originator, addressee, any intended recipient, or subscriber. There is also the Computer Fraud and Abuse act. It makes unauthorized access of certain devices a criminal act. It originally covered only computers, but now covers even cell phones and tablets. Many States have laws similar to these.

There are also Terms of Service Agreements that do the same thing to which you have agreed. Terms of service agreements consist of all the fine print with which you are presented when you open an account or agree to utilize an online service. You are presented with a scrolling window that has line after line of regulations on the utilization of the service. Most attorneys don’t have enough experience and information to understand these terms, so what’s an ordinary individual supposed to do. Furthermore, we all know that if you don’t take the necessary step to indicate your agreement and consent to these terms, you can’t use the services. So, we all agree to a bunch of stuff for which we have no idea of its content and implications. Most of this stuff is designed to protect the interests of the service provider, who is considered the custodian of the digital assets, and the interests of the owner of these digital assets.

So, what is the problem? If you are in any way disabled and unable to direct the use of or management of these digital assets, or you want your heirs and beneficiaries to be able to continue to use or manage these digital assets, you need to have authorized and documented these intentions in accordance with RUFADAA.

In Missouri, this law is referred to as the Missouri Fiduciary Access to Digital Assets Act, and it can be found at Title XXXI Chapter 472.400 of the Missouri Statutes. This is a law that is new in August of 2018. Any estate planning you might have done before then probably won’t conform to this. You should find a Missouri attorney that has a good understanding of digital assets in order to see what needs to be done to protect them.

If you are not a Missouri resident, you might want to contact an attorney in the State in which you reside to find out if this law has been adopted by your State. As of this writing it has not yet been adopted in California, Oklahoma, Louisiana, Kentucky, Pennsylvania, Delaware, and the District of Columbia. Legislation for adoption has been introduced in New Hampshire and Massachusetts, but it is not law there either.

Editor’s Note: This article was written by Gary Hansen who is Principal in HANSEN LAW, P.C. located at 1515 Countryside Hill Chesterfield, Missouri 63005. Mr. Hansen can be contacted by telephone at (636) 237-8688, email at ghansen@hansenlaw.pro or at this web site <a href=”http://www.hansenlaw.pro” target=”_blank”>www.hansenlaw.pro</a>