RUFADAA: What is It... Why We Should Be Concerned About Its Affect on Estate and Financial Planning
Author: Neil Goltermann
Our burgeoning online lives augers of a new world in matters of estate and financial planning, as well as the management of these assets by fiduciaries. Examples of digital assets include software; stored information on hard drives, backup drives, CDs, DVDs, thumb drives, or on the “cloud”; online presences on websites, blogs, social media, e mail, bank, brokerage and financial accounts, iTunes, music files, video games, shopping and travel accounts, and even bitcoins.
One cannot function in today’s world without a password or two, or perhaps 25. What happens to the Facebook and Google accounts of a deceased person? How are Facebook and Google, and other Internet providers notified when an account holder has died? How does the family of a loved one collect the deceased’s photos and digital music, or gain access to on-line bank accounts and records?
RUFADAA is the Revised Uniform Fiduciary Access to Digital Assets Act. RUFADAA defines a “Digital Asset” as “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.” See, RUFADAA, Section 2(10).
What is the RUFADAA? Why should we care? What should we know about it? RUFADAA is the second effort of the Uniform Law Commission1 to address the issue of what to do with a decedent’s online presence and digital assets. RUFADAA was approved by the Uniform Laws Commission during its July 2015 meeting.
RUFADDA is, more or less, a compromise based on discussions and negotiations between representatives of the Uniform Laws Commission and industry representatives from the likes of AOL, Google, Facebook and Yahoo. Since the initial proposal2 lobbyists for the industry and their trade association have worked hard to argue this law was inappropriate for many reasons including the following:
- It ignored the privacy rights of third parties, and fiduciaries shouldn’t have access to communications.3
- Federal law preempts the rights and duties of a fiduciary, who, it is argued, could not access and disclose a decedent’s records without violating various laws.4
- State laws could also impact fiduciaries and anyone else accessing such records.5
- UFADAA would improperly void user contracts and restrict the terms of service agreements.
What’s next? RUFADAA will be proposed in numerous states around the country during the next cycle. This will include Illinois, with its second go-round on this issue.6
Regardless of whether RUFADAA proposals pass in Illinois and other states one still needs to plan for clients’ digital assets.
Even with RUFADAA or RUFADAA-like laws there will continue to be limitations on fiduciary access to digital assets unless:
- A governing document expressly authorizes and consents to such fiduciary access, or
- The account holder provides consent to disclosure to the fiduciary in an online tool.
This means attorneys have to be intentional when drafting wills, trusts and power of attorney documents.
Further, financial planners should address the consent and authority issue in their user agreements, including the likelihood of including specific provisions to identify persons who will have authority to access account information, as well as actually control the assets in question. Advisors should use their own agreements even if the client has a will, trust and/or power of attorney documents and have an understanding of whether these documents have specific and direct authority.
1. The Uniform Law Commission also known as the National Conference of Commissioners on Uniform State Laws was established in 1892 to study, review, draft and promote uniform laws for adoption by the states. http://www.uniformlaws.org/Narrative.aspx?title=About%20the%20ULC.↩
2. Uniform Fiduciary Access to Digital Assets Act, approved in 2014, and was the subject of proposed enactments in 27 States, including Illinois in 2015. See, “Download an Enactment Kit” on the Uniform Laws website: http://www.uniformlaws.org/Act.aspx?title=Fiduciary%20Access%20to%20Digital%20Assets%20Act,%20Revised%20(2015). ↩
3. By way of example, see: “To My Heirs I Leave My Digital Assets,” Russ Borg, http://www.agileplatformadvisors.com/blog/my-heirs-i-leave-my-digital-assets, quoting Jim Halpert, an attorney with DLA Piper, and the director of the State Privacy and Security Coalition, an umbrella group that represents Google, Yahoo, Facebook and other firms, discussing the adoption of a Delaware law providing access to digital assets: "This law takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased," he said. "This would include highly confidential communications to decedents from third parties who are still alive—patients of deceased doctors, psychiatrists, and clergy, for example—who would be very surprised that an executor is reviewing the communications. The law may well create a lot of confusion and false expectations because, as the law itself acknowledges, federal law may prohibit disclosing contents of communications.” And on why there should be a difference between communications in paper letters and email and other digital messages: "The volume of email is far larger and people usually consider much more carefully what they write in a letter." ↩
4. Stored Wire and Electronic Communications and Transactional Records Act (SCA), 18 U.S.C. Chapter 121 §§2701-2712; Computer Fraud and Abuse Act, 18 U.S.C. §1030. ↩
5. See, for example, Illinois’ computer tampering statute, 720 ILCS 5/17-51. ↩
6. A version of UFADAA was proposed in Illinois as Senate Bill 1376 and House Bill 4131. SB 1376 unanimously passed the Senate. For the legislative history see: http://www.ilga.gov/legislation/BillStatus.asp?DocNum=1376&GAID=13&DocTypeID=SB&SessionID=88&GA=99. However, it never was voted on in the House, magically getting stuck in the revolving door of the Rules Committee and some proposed amendments that would’ve gutted the initial proposal, before essentially dying on the vine when the ULC focused on the effort to work out a compromise with the industry opponents. ↩