The fiduciary of an Ohio decedent’s estate or trust will often need access to the decedent’s digital assets, whether it be on-line bank accounts, e-mail, or even social media.
Ohio has adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). Ohio’s RUFADAA sets forth how a fiduciary can access a decedent’s digital asset, and how you can plan for fiduciary access after your death.
What Is a Digital Asset Under Ohio’s RUFADAA?
“Digital asset” is defined in section 2137.01(I) of Ohio’s RUFADAA as follows:
“Digital asset” means an electronic record in which an individual has a right or interest. “Digital asset” does not include an underlying asset or liability unless the asset or liability is itself an electronic record.
There are basically four main categories of digital assets:
- Electronic items with monetary value: Items like bitcoin, domain names, and cryptocurrency.
- Regular financial information: Bank accounts and other investment accounts.
- Electronic communications: Email accounts and other private message accounts in social media platforms.
- Everything else: Online storage of photos, memberships, etc.
What Access Does an Ohio Fiduciary Have To Digital Assets?
The extent to which an Ohio fiduciary has access to a decedent’s digital assets is determined under the RUFADAA as follows.
User Direction For Disclosure of Digital Assets
A user of digital assets can direct how his or her digital assets are disclosed, pursuant to Ohio Revised Code 2137.03.
First, a user may use an online tool to direct the custodian to disclose or not to disclose to a designated recipient some or all of the user’s digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney, or other record.
Second, a user can allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user’s digital assets, including the content of electronic communications sent or received by the user.
Terms Of Service Agreement
If there is no user direction for disclosure of digital assets, then the terms-of-service agreement for the digital asset will dictate how a fiduciary can access digital assets. See Ohio Revised Code 2137.04.
Ohio Fiduciary Duties With Respect To Digital Assets
The RUFADAA expressly provides that the legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
- The duty of care;
- The duty of loyalty;
- The duty of confidentiality.
What Authority Does an Ohio Fiduciary Have Over a Digital Asset?
The RUFADAA provides that the authority of a fiduciary over digital assets includes the following:
- A fiduciary with authority over the property of a decedent, ward, principal, or settlor has the right to access any digital asset in which the decedent, ward, principal, or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
- A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, ward, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including section 04of the Revised Code.
- A fiduciary of a user may request a custodian to terminate the user’s account.
Ohio Revised Code section 2137.14 sets forth the complete breadth of fiduciary authority with respect to digital assets.
Ohio Law Allows For A Testator To Plan For Fiduciary Access To Digital Assets
A testator can plan in advance for a fiduciary to have access to his or her digital assets after death. An Ohio probate lawyer can help you update your will , trust, or power of attorney to make it clear that your fiduciary has access to whatever digital assets you have when you die.
Access the RUFADAA here: Chapter 2137, Ohio’s Uniform Fiduciary Access to Digital Assets Act.