Estate Planning with Digital Assets

Technology consumes the lives of most Americans.  In fact, humans create an estimated 2.5 quintillion bytes of data each day and an estimated 90 percent of all the world’s data was created in the last two years.[1]  In perspective, 2.5 quintillion bytes of data is equal to about 530 million songs or 90 continuous years of HD video.[2]  Holding power and control over digital assets is advantageous to the owner, but many jurisdictions do not have laws to effectively govern what happens to a deceased person’s digital assets.  Prior to April of this year, Ohio was one of those jurisdictions.

Ohio House Bill 432 (HB432) was signed into law by Governor Kasich at the end of 2016 and it became effective April 6, 2017.  This Bill, otherwise known as the Omnibus Probate Bill, made significant changes to estate administration in Ohio.  Chief among those changes was the adoption of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).  Under the original Uniform Fiduciary Access to Digital Assets Act (UFADAA), fiduciaries were authorized to manage digital property such as computer files, web domains, and virtual currency, but it restricted a fiduciary’s access to the substantive content of electronic communications (e.g., email messages, text messages, social media accounts, etc.).  However, HB432 and RUFADAA extended the reach of a fiduciary to include the power to manage a person’s substantive digital assets.

Rather than granting this power across the board, HB432 outlines the means through which an individual may grant such power to his or her fiduciary.  These means include: (1) online tools offered by a custodian or possessor of digital assets and through which an individual can select how their digital assets will be treated, (2) a will, trust, or power of attorney, and (3) the custodian’s terms of service.[3]  The foregoing means are listed in order of descending authority.  In other words, an online tool supersedes the terms of a will or trust, which supersedes the custodian’s terms of service, which supersedes the default RUFADAA rules.

As estate planning catches up with technology, it is important to understand how newly enacted legislation can affect your rights.  With Ohio’s recent adoption of RUFADAA, individuals now have greater control over what happens to their digital assets after death.  As is good practice with estate planning, individuals seeking to exert a measure of control over their digital assets after death should consult with an estate planning attorney.

[1] Bringing big data to the enterprise, IBM.com, https://www-01.ibm.com/software/data/bigdata/what-is-big-data.html (last visited May 25, 2017).

[2] Mikal Khoso, How Much Data is Produced Every Day?, Ne. U.: Level (May 13, 2016), http://www.northeastern.edu/levelblog/2016/05/13/how-much-data-produced-every-day/.

[3] See generally, Ohio Rev. Code § 2137.03 (2017).

Attorney | 513-797-2853 | eli@finneylawfirm.com | + posts

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