What are digital assets?
The term “digital assets” encompasses a wide range of electronic records that you may own, license, or have some level of control over. Examples of common digital assets include emails, social media accounts (Facebook, Instagram, Snapchat, and Twitter, to name a few), digital files, and virtual currency (such as Bitcoin or frequent-flyer miles).
Physical assets connected to electronic records are not considered digital assets. For instance, money in a bank account is not a digital asset, even if you receive electronic statements from the bank.
CT Revised Uniform Fiduciary Access to Digital Assets Act
The term “custodian” refers to the person who carries, maintains, processes, or stores an asset. Up until a few years ago, custodians of digital assets owned, licensed, or controlled by Connecticut residents could implement their own rules governing how these assets could be accessed upon the owner’s death or incapacity. These rules varied greatly amongst custodians and led to difficulties for fiduciaries.
To remedy this issue, Connecticut passed the Connecticut Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”). Fiduciaries covered under the act include executors/administrators of decedents’ estates, court-appointed conservators, agents appointed under powers of attorney, and trustees. The new law grants a fiduciary access to the following: (1) the content of electronic communications; (2) the catalogue of electronic communications; and, (3) other digital assets, which the represented person has a right.
A fiduciary seeking to access or terminate a digital asset needs to send a written request to the custodian, along with a certified copy of the document granting authority for the fiduciary to act on behalf of the represented person (i.e., fiduciary’s certificate and death certificate, power of attorney, court order, or trust instrument). The custodian of the digital asset may request additional information from the fiduciary, if needed. The act states that the custodian generally must comply with the fiduciary’s request within 60 days of receipt.
What does the RUFADAA mean for me?
If you have an existing power of attorney that was executed before October 1, 2016, you may want to consider executing an updated one to grant your agent authority over your digital assets. Doing so gives your agent the present right to exercise any and all powers over your digital assets as if they were you, meaning you do not have to be incapacitated or deceased for the agent to be so empowered.
You should also consider planning ahead in the event of future incapacity or death. As more people, of all ages, have online accounts and digital assets, it is increasingly important for fiduciaries to be able to access these assets. Failing to properly convey this power to your fiduciaries in your estate planning documents can lead to valuable (monetarily or sentimentally) assets being permanently lost.
To discuss how the RUFADAA may affect your estate planning needs, please contact me or one of the other experienced estate planning attorneys at Bayer & Black, P.C.