Authorizing Access to Digital Assets: Using Online Tools in Estate Planning
The Revised Uniform Fiduciary Access to Digital Assets Act (the “Uniform Act”), introduced in 2015 and passed by New Jersey in 2017, addresses the management of digital assets in the event of the death or disability of the holder of the asset. ‘an account. The Uniform Act attempts to balance a fiduciary’s practical need for access to digital assets with the privacy interests of the original account holder and federal privacy and hacking laws (e.g., the Stored Communications Act, 18 USC §§2701 et seq. and Computer Fraud and Abuse Act, 18 USC §1030). The Uniform Act also responds to the need for service providers to have a coherent and standardized framework on which to rely when responding to requests for disclosure. Since its introduction, 46 States have adopted or introduced one form or another of the Uniform Act.
New Jersey’s Uniform Fiduciary Access to Digital Assets Act (the “Act”) defines a digital asset as “an electronic record in which an individual has a right or interest”, such as email accounts, messages text, social media accounts, photo accounts, website domains, non-fungible tokens and cryptocurrency. This list is not exhaustive and continues to grow as technology advances forms of digital assets. Although the term does not include bank or brokerage accounts that provide online services, access to digital assets can be critical to managing these accounts if account records are only accessible via email.