Your Digital Assets

Sarah J. Randall

Author: Sarah J. Randall

POST DATE: 3.2.17
Ccha  Estate Planning

In 2016 the Indiana Legislature adopted the Revised Uniform Fiduciary Access to Digital Assets Act. This Act allows you to give your fiduciary authority to access your digital assets. The Act defines "digital asset" as an electronic record in which an individual has a right or interest. 

A fiduciary is a person appointed to manage the property of another person, subject to strict duties to act in the other person’s best interest. An example of your fiduciary is the personal representative named in your Last Will and Testament, the successor trustee in your Trust and the attorney-in-fact named in your Power of Attorney document. 

This new change in Indiana law took effect on July 1, 2016, and can be found in Title 32, Article 39 of the Indiana Code. The goal of this act is to assist your fiduciary in managing and collecting your digital assets.  This Act gives you the ability to grant your fiduciary authority to access some or all of your digital assets including the content of your email communications. This Act also gives you the ability to prohibit your fiduciary from accessing your digital assets. 

If an online tool allows you to modify or delete a direction to the custodian of your digital asset at all times regarding the disclosure or the non-disclosure of your digital assets to your fiduciary, then your online directions to your custodian will override a contrary direction in your Will, Trust, Power of Attorney or other record. However, if the online tool does not allow you to modify or delete a direction to the custodian at all times regarding disclosure of your digital assets, then the direction in your Will, Trust and Power of Attorney documents will control whether your fiduciary does or does not have access to your digital assets. 

This new law provides that a court may grant a guardian access to the digital assets of the protected person and that, under certain circumstances, a custodian is required to disclose to a guardian a catalogue of electronic communications sent or received by the protected person. This Act also authorizes a fiduciary of a user to request that a custodian terminate the user's account. If the conditions for compliance are met, a custodian must comply with a request from a fiduciary to disclose digital assets or terminate an account within 60 days, and if the custodian fails to comply with the request, the fiduciary may apply for a court order directing compliance.

The legal duties imposed on a fiduciary charged with managing tangible property also apply to a fiduciary charged with managing digital assets. A custodian is immune from liability for an act done or omission made in good faith in compliance with the Revised Uniform Fiduciary Access to Digital Assets Act. 

If you would like to be sure that your fiduciaries are able to access your digital assets, or prohibited from accessing your digital assets, please contact us to schedule a meeting.  

To learn more about Sarah and her practice, please visit her profile.