Your Digital Data and the Uniform Law Commission
I have written several blogs/posts about the increasing importance of an individual’s digital inheritance (Managing Your Digital Legacy-Feb.2015; Take Stock of Your Digital Data-Nov.2014 and High Tech Advanced Directives-May, 2014)
Our friends at The Digital Beyond (www.thedigitalbeyond.com) published another very informative article (posted Sept. 26, 2015) about recent proposals of the Uniform Laws Commission (ULC) regarding digital assets.
First I should explain about the work of the Uniform Laws Commission. You can access their website via www.uniformlaws.org. A brief description of the Commission from their website is:
“The Uniform Law Commission (ULC, also known as the National Conference of Commissioners on Uniform State Laws), established in 1892, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.”
An interesting point is that the ULC Commissioners donate their time and receive no compensation for their work. The ULC itself is a state supported organization.
“It must be emphasized that the ULC can only propose—no uniform law is effective until a state legislature adopts it.”
Now that we know something about the ULC we can look at some of the specifics of the “Fiduciary Access to Digital Assets Act (2015)” (UFADAA). One important point is to define the term fiduciary.
According to The Digital Beyond posting and the ULC: “A fiduciary is a person appointed to manage the property of another person, subject to strict duties to act in the other person’s best interest. Common types of fiduciaries include executors of a decedent’s estate, trustees, conservators, and agents under a power of attorney”
This is an excellent general description of the term fiduciary and I have written in the past about the explicit duties of executors of estates as they relate to estate planning and probate.
You can read the exact language of the UFADAA on the ULC website, but a brief synopsis:
“This act extends the traditional power of a fiduciary to manage tangible property to include management of a person’s digital assets. The act allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic communications such as email, text messages, and social media accounts unless the original user consented in a will, trust, power of attorney, or other record.”
Thus, a fiduciary may be empowered to manage specific digital assets similarly to tangible assets (although this is a very simplified explanation of the UFADAA.)
It appears that the proposed UFADAA has gone far to clarify the position of fiduciaries in enabling them to manage digital property. However, note that recommendations explicitly restrict access to emails, text messages and social media accounts unless the deceased has consented to access in a legal document such as a will, trust, power of attorney, or other legal document.
If you have digital assets of any form, a review of your will, trust, power attorney and other legal documents is advised to incorporate the language of consent. This is particularly true of digital accounts which have “value” to your heirs and decedents. An example of this would be a website that generates income.
A word about The Digital Beyond – founded by John Romano and Evan Carroll who have written numerous books; give presentations and offer thought-provoking articles about the ‘digital afterlife.’
“Working to Preserve Your Wealth and Protect Your Future…in a Constantly Changing World”
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Visit my website: www.attorneybarbaradalvano.weebly.com for more postings/blogs, infographics and bio.