The Uniform Law Commission (ULC) adopted the Uniform Fiduciary Access to Digital Assets Act (UFADAA) in July 2014 to better align state laws with the virtual reality of modern economic and social life. Under the UFADAA, fiduciaries had the same access to digital assets as they did for tangible assets, but only for the limited purpose of carrying out their fiduciary duties. The ULC hoped the model legislation would be considered, and possibly enacted, in all 50 states. Despite early optimism, the bills were met with stiff resistance from industry coalitions who feared the UFADAA provided fiduciaries with too much access to a decedent’s digital assets. By the middle of 2015, aside from a modified version in Delaware enacted in 2014, not one state had signed the model legislation into law.
In an effort to resolve the privacy issues that held back the proposal in 2015, the ULC released a revised UFADAA on September 28, 2015. The revised UFADAA greatly reduces the default authority of a fiduciary to access the digital assets of a decedent, instead providing greater legal effect to the decedent’s instructions for the disposition of digital assets. The proposal introduces the concept of an “online tool,” defined as “an electronic service provided by the custodian that allows a user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or non-disclosure of digital assets to a third person.” The online tool will provide fiduciaries with clear, legally enforceable instructions on how digital assets are accessed. In the absence of consent via the online tool, a fiduciary would only have access to the content of a decedent’s electronic communications if the decedent consented to such access in a will, trust, or other document. States are likely to begin considering the revised UFADAA in the beginning of 2016.