Revised Uniform Fiduciary Access to Digital Assets Act in Ohio

The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) is a legal framework developed by the Uniform Law Commission (ULC) to govern fiduciary access to digital assets, addressing the growing need to manage electronic records after a person’s death or incapacity. Ohio adopted RUFADAA in 2017 (Ohio Rev. Code § 2137.01 et seq.), aligning with 45 other states by 2023 to provide a consistent approach to digital estate planning. Below, I’ll outline the specifics of RUFADAA, focusing on its application in Ohio, its key provisions, and critical considerations. 

Key Provisions of RUFADAA in Ohio

Definition of Digital Assets: RUFADAA defines a “digital asset” as an electronic record in which an individual has a right or interest, excluding underlying assets or liabilities unless they are electronic records themselves (Ohio Rev. Code § 2137.01(I)). This definition includes:

• Electronic Items with Monetary Value: Cryptocurrencies, domain names, online banking accounts.

• Electronic Communications: Emails, social media messages, text messages.

• Sentimental or Intellectual Property: Digital photos, videos, blogs.

This definition ensures fiduciaries can manage a wide range of digital assets but distinguishes them from the underlying value (e.g., funds in a bank account are not digital assets, but the electronic record of the account is).

Fiduciary Authority: RUFADAA applies to fiduciaries such as executors, trustees, agents under a power of attorney, and court-appointed guardians. Ohio Rev. Code § 2137.14. In Ohio, fiduciaries:

• have the right to access digital assets if the user (the account holder) had a right or interest in them, provided they are not restricted by a terms-of-service agreement (TOSA).

• are treated as authorized users under computer fraud and abuse laws, protecting them from legal liability when accessing assets within their scope of duties.

Hierarchy of Access Instructions: RUFADAA establishes a three-tier priority system for determining fiduciary access: 

• Online Tools: If the user designated access through an online tool (e.g., Google’s Inactive Account Manager or Facebook’s Legacy Contact), this takes precedence. For example, a user can specify a trusted contact to access their account after a period of inactivity or opt for permanent deletion.

• Legal Documents: If no online tool is used, the user’s will, trust, power of attorney, or other record governs access. For instance, a GDPOA can explicitly grant an agent authority to manage digital assets.

• Terms-of-Service Agreements (TOSA): If neither an online tool nor legal document provides direction, the custodian’s TOSA dictates access. Many TOSAs (e.g., Verizon, Yahoo) state that accounts are non-transferable and terminate upon death, potentially limiting fiduciary access.

See, Ohio Rev. Code § 2137.03 to 2137.04.

Custodian Compliance and Protections: Custodians (e.g., Google, Facebook) are the entities that store or provide digital assets. RUFADAA outlines their obligations and protections:

• Compliance Timeline: Custodians must comply with a fiduciary’s request within 60 days of receiving required documentation, such as a certified copy of the fiduciary’s authority (e.g., letter of appointment, trust certification) and account identifiers (e.g., username).  Ohio Rev. Code § 2137.07.

• Court Orders: Custodians can request a court order verifying the account belongs to the user, ensuring sufficient consent for disclosure, especially for electronic communications, which are protected under federal privacy laws like the Stored Communications Act, 18 U.S.C. § 2701 et seq.

• Limited Access: Custodians may limit disclosure to what is “reasonably necessary” for estate administration, charge fees, or refuse burdensome requests. They cannot provide access to deleted assets or joint accounts.

• Immunity: Custodians are immune from liability for good-faith compliance with fiduciary requests, protecting them from legal risks.

• Privacy and Electronic Communications:  RUFADAA balances fiduciary access with privacy.  Fiduciaries can access the “content of electronic communications” (e.g., email content, private messages) only if the user explicitly consented in a will, trust, or power of attorney. Without consent, fiduciaries may access metadata (e.g., email logs) but not the content, protecting the user’s privacy while allowing estate administration to proceed.

• Fiduciary Duties: RUFADAA applies the same legal duties to digital assets as to tangible property, including the duty of care, loyalty, and confidentiality.  Ohio Rev. Code § 2137.14. Fiduciaries cannot exceed the user’s access rights, ensuring they do not misuse their authority.

Application Challenges in Ohio 

Ohio’s adoption of RUFADAA in 2017 ensures that fiduciaries have a legal pathway to manage digital assets, but practical challenges remain.

• Documentation Requirements: Fiduciaries must provide custodians with specific documents (e.g., a certified copy of their appointment, account identifiers), which can be cumbersome, especially for multiple accounts.

• Court Involvement: If custodians resist disclosure, fiduciaries may need to seek a court order, adding time and expense to the estate administration process process.

• TOSA Conflicts: Ohio law prioritizes user directions over TOSAs, but many custodians’ agreements (e.g., Verizon’s) terminate accounts upon death, potentially conflicting with user intent unless explicitly overridden in a legal document.

Critical Examination

While RUFADAA provides a much-needed framework, it has limitations:

• Privacy vs. Access Tension: The requirement for explicit consent to access electronic communications protects user privacy but can hinder fiduciaries, especially if the user did not plan ahead. This balance may overly favor custodians, who can limit access to “reasonably necessary” information, potentially leaving sentimental assets (e.g., family photos) inaccessible.  Planning ahead, and planning capably is encouraged, but in those situations where a user does neither, or simply plans incapably or incompletely, family members will suffer.   

• Practical Barriers: The process of obtaining access—requiring documentation, court orders, and custodian compliance—can be a “headache” and an "entry barrier" for fiduciaries. This complexity may discourage fiduciaries from pursuing access, especially for less valuable assets.

• Incumbency Gaps: Incumbency gaps refer to the periods or situations in estate planning or trust administration where there is a lack of an active, legally recognized fiduciary (such as a trustee, executor, or agent under a power of attorney) to manage the estate, trust, or digital assets of a person who is incapacitated or deceased. These gaps can occur due to delays, resignations, deaths, or failures to appoint a successor fiduciary, leading to potential mismanagement, legal complications, or inability to access critical assets, including digital ones like email accounts or online financial platforms.

• Incapacity Without a Successor: In states like California, RUFADAA initially did not apply to incapacitated individuals, though Ohio’s version covers both death and incapacity. Ohio Rev. Code § 2137.03. This ensures broader applicability but highlights inconsistencies across states, as not all jurisdictions have adopted uniform provisions. Even with Ohio's broader scope, incumbency gaps remain. If a person becomes incapacitated and their agent under a General Durable Power of Attorney (GDPOA) resigns, passes away, or is otherwise unable to act, and no successor agent was named, there may be no one with legal authority to manage the person’s digital assets (e.g., accessing Gmail, paying bills online), or if the agent was the only one with access to a password manager like LastPass, an incumbency gap could prevent timely access to critical accounts.

• Death Without a Successor Trustee/Executor: Upon a person’s death, if the named executor or trustee is unavailable (e.g., predeceased, declines to serve, or is incapacitated) and no successor is appointed, there may be a delay in appointing a new fiduciary through the courts. During this gap, digital assets like Smart Home and IoT Accounts (e.g., Ring, Amazon Alexa) might go unmanaged, potentially compromising home security or functionality for aging-in-place individuals.

• Legal and Administrative Delays: Incumbency gaps often arise from the time it takes to probate a will, appoint a new trustee, or obtain court approval for a successor fiduciary. During this period, digital assets may remain inaccessible, especially if platforms like Google require a court order for access , exacerbating the issue for heirs or fiduciaries. 

• Custodian Discretion: Custodians’ ability to charge fees, limit access, or require court orders gives them significant control, potentially undermining user intent. This reflects a bias toward protecting tech companies rather than prioritizing fiduciary needs or user wishes.

Importance of a Plan Including a Digital Assets Inventory

RUFADAA’s hierarchy of access instructions supports the necessity of a tech-savvy estate plan specifying explicitly fiduciary access in a will, trust, or GDPOA to override TOSAs, and the use of a Digital Assets Inventory.  The user should:

• Appoint and Empower Fiduciaries:  Ensure your GDPOA, will, and trust name multiple successor agents, executors, and/or trustees to step in if the primary fiduciary is unavailable, and explicitly confer broad and specific authority to manage all aspects of digital assets and accounts.  

• Leverage Online Tools: Use platform-specific tools like Google’s Inactive Account Manager to designate trusted contacts, reducing reliance on fiduciaries during gaps, and minimizing disputes regarding fiduciary's' authority and role.

• Use Digital Asset Inventory Tools: Document access instructions in a Digital Assets Inventory Worksheet and store it securely (e.g., in LegalVault®) so any fiduciary can access it.  Identify, by completing the inventory, for each digital  asset or account an intention regarding  access and control by a fiduciary, and sign each page of the inventory.

• Regular Updates: Review and update your estate plan and inventory periodically to ensure named fiduciaries are still willing and able to serve, minimizing the risk of gaps, and track your decisions and updates on your Inventory.

• Deploy a Trust: Time is a factor when dealing with digital assets.  Successor agents appointed by a GDPOA can be stood up quickly while you are alive.  Upon your death, the choice is between at trustee that you nominate prior to your death or a court appointed fiduciary, such as a general or special executor, administrator, or commissioner.  Although it is possible that these may be nominated, qualified, appointed, and empowered "quickly," the normal course of events in a court process is anything but "quick."  In most cases, a successor trustee of a trust, if available and willing to serve, is able to be empowered to serve within a week of receiving a death certificate.  A court-appointed fiduciary is "quickly"  empowered within 30-90 days, though exceptions are possible.    

• Secure Storage:  Store access instructions securely (e.g., via LegalVault®) to facilitate fiduciary action.

Conclusion

RUFADAA in Ohio provides a structured legal framework for fiduciary access to digital assets, defining digital assets broadly, establishing a priority system for access, and balancing privacy with estate administration needs. However, its implementation can be complex, with custodians holding significant discretion and fiduciaries facing procedural hurdles. For estate planning, RUFADAA underscores the need for explicit authority in legal documents and proactive planning to ensure fiduciaries can manage digital assets effectively. Clients should be aware of both the legal pathway RUFADAA provides and its practical limitations, ensuring their estate plans are robust enough to navigate these challenges.