A new Oklahoma law allows you to write a will, trust, or power of attorney in which you allow someone else to access your digital assets. This law also allows you to use an online tool to allow someone to access your digital assets. If you use a will, trust, power or attorney or online tool to allow someone to access your digital assets, the entity that controls the digital assets must allow you access to the digital assets.
This law also provides that under certain circumstances, if you pass away, the personal representative of your estate may access your digital assets. Also, if you execute a general power of attorney, your attorney-in-fact may be allowed access to your digital assets. Or, if a court appoints a guardian for you, your guardian may access your digital assets. You may, however, write a document that prevents people from accessing your digital assets.
This law is called the “Revised Uniform Fiduciary Access to Digital Assets Act” (RUFADAA). RUFADAA went into effect in Oklahoma a few weeks ago, on November 1, 2024. Oklahoma is one of the last U.S. states to adopt RUFADAA; currently, Louisiana and Massachusetts are the only U.S. states not to have enacted the law. Google and Facebook have also indicated their support for RUFADAA. In a recent post on new Oklahoma laws, I briefly discussed RUFADAA; in this post, I will explain RUFADAA further.
RUFADAA defines “digital asset” as “an electronic record in which an individual has a right or interest.” The business that carries, maintains, processes, receives, or stores your digital assets is called the “custodian.” You may name someone to have access to your digital assets by creating:
· A will (Click here to learn about creating wills)
· A trust (Click here for information about trusts)
· A power of attorney (Click here to read about powers of attorney; on this site you can find sample power of attorney forms)
· Also, if a custodian of digital assets allows you to use an online tool to give directions to disclose digital assets to someone else, you may use this online tool to direct the custodian to disclose, or not disclose, digital assets to a third person.
The person whom you authorize to receive digital assets is termed the “designated representative.” If you have named a designated representative in a will, trust, or power of attorney, your designated representative must give the custodian this will, trust, or power of attorney. The custodian must then disclose the digital assets to your designated representative. The custodian may also charge a “reasonable” fee for the cost of disclosing the assets. If the custodian believes that complying with your request would create an undue burden, either your designated representative, or the custodian, may seek a court order that defines what, if any, digital assets the custodian must disclose.
If you have not named a designated representative, then, after you die, the personal representative of your estate may still be able to access your digital assets if the personal representative gives the custodian a small estate affidavit or a court order. The custodian may also ask for a username or account identifier; the custodian may also require a court order that makes specific findings that disclosure of digital assets is necessary to administer your estate.
Similarly, if you have not named a designated representative, but if you have executed a power of attorney that gives someone “general authority” to act on your behalf, then the custodian must disclose to your power of attorney a “catalog of electronic communications” but not the “content of electronic communications.”
However, you may act to prevent such disclosure. You may write a will, power of attorney, or trust, in which you specifically prohibit disclosure of your digital assets.
Also, if you are under a court-ordered guardianship, then the guardian may seek a court order directing the custodian to allow the guardian to access your digital assets.
Duties of a Fiduciary
A “fiduciary” is any designated representative, or any other person (such as a guardian, trustee, or personal representative of an estate) who has the right to access digital assets under RUFADAA. A fiduciary has certain duties. These include the duties of “care, loyalty and confidentiality.” RUFADAA does not define what these words mean. Also, anyone who receives digital assets under RUFADAA must:
· Comply with copyright law
· Comply with the terms of service
· Comply with any limitations the court places on his duties, and
· May not impersonate the original user
Rights of a Fiduciary
The rights of a fiduciary include:
· The right to access any digital asset in which the original user had an interest
· The fiduciary is an authorized user for the purpose of computer fraud and unauthorized computer access laws.
· The fiduciary has the right to terminate the user’s account.
What the custodian must do
If you are a fiduciary or designated representative, and you give the custodian the information required under RUFADAA, the custodian must comply with your request within sixty days. If the custodian does not comply with your request, you may ask for a court order directing them to comply. However, the custodian may ask for a court order specifying that the account actually belonged to the user, or that specifies that the user actually consented to your receiving the information. Also, if in your case, another law applies to the disclosure of the digital assets, then the custodian may ask for an order that contains a finding required by the other law. RUFADAA also says that if a custodian acts “in good faith in compliance with” RUFADAA, then you can’t sue the custodian. RUFADAA does not define “good faith.”
When RUFADAA applies
RUFADAA applies to any will, power of attorney, trust, or guardianship. RUFADAA applies whether the will, power of attorney, trust or guardianship was created before or after RUFADAA became effective. RUFADAA applies to the custodian if the user is a resident of Oklahoma, or resided in Oklahoma at the time of his death. Because every U.S. state except Massachusetts and Louisiana have adopted RUFADAA, RUFADAA also likely applies if the user resides, or resided at the time of his death, in any other state that has adopted RUFADAA. (The District of Columbia and the U.S. Virgin Islands have also adopted RUFADAA.) RUFADAA does not apply to a digital asset of an employer that an employee used as part of the employer’s business.
Do you have questions about digital assets? Contact the Persaud Law Office.
The Persaud Law Office regularly handles estate and probate matters. The changing technological landscape has also brought about changes in the law. If you need to access the digital assets of another person, or a deceased person, the Persaud Law Office may be able to help you. If you have questions about how RUFADAA applies to your situation, give us a call.
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