¶ 1301
Overview
Scope of the chapter. A fiduciary who takes charge of a decedent's estate, a principal's affairs, a ward's property or a trust will find that much of the information needed for the work, and some of the property itself, sits in accounts maintained by third parties: e-mail providers, cloud-storage services, social networks, online banks and brokers, and digital-asset exchanges. The fiduciary's authority over the user's property under state law does not by itself oblige the provider to open the account, and federal privacy law restricts what the provider may disclose. The Revised Uniform Fiduciary Access to Digital Assets Act (2015) (RUFADAA) was written to reconcile those positions. This chapter examines the Act section by section, the federal statutes that frame it, the decisions construing it and its predecessors, and its application to digital assets of economic value, including crypto-assets held on exchanges and in self-custody. It closes with model provisions for wills, powers of attorney and trust instruments and a checklist.
Citation of the Act. References in this chapter to sections of RUFADAA are to the uniform text as promulgated by the Uniform Law Commission in 2015. Because the uniform text is cited most reliably through a state enactment, quotations are taken from the Florida Fiduciary Access to Digital Assets Act, Fla. Stat. ch. 740 (ch. 2016-46), which follows the uniform text closely. Table 13-1 gives the parallel citations. Where another state has departed from the uniform text, the departure is noted (¶ 1310.07).
The two questions the Act answers. RUFADAA answers two questions. The first is whether a fiduciary may obtain access to a user's digital assets held by a custodian, and to what extent. The answer depends on the type of fiduciary, the type of digital asset and the user's own directions. The second is what a fiduciary may do with digital assets once the fiduciary has access, including assets the user kept on personal devices. The Act answers the first question in §§ 4 through 14 and § 16, and the second chiefly in § 15.
What the Act does not do. The Act does not decide who owns a digital asset, does not transfer title to anything, and does not displace probate, trust or agency law. Section 5(b) provides that the Act gives a fiduciary no "new or expanded rights other than those held by the user." Fla. Stat. § 740.004(2). A fiduciary who obtains access to a decedent's exchange account under the Act acquires the decedent's position under the account agreement, no more. Whether the estate owns the assets credited to that account and how those assets pass are questions for the law discussed in chs. 3, 10 and 23.
The federal frame. Two federal statutes shape the Act. The Stored Communications Act, 18 U.S.C. §§ 2701 to 2713, prohibits providers of electronic communication services and remote computing services to the public from knowingly divulging the contents of communications, with stated exceptions. 18 U.S.C. § 2702(a), (b). The Computer Fraud and Abuse Act, 18 U.S.C. § 1030, penalizes access to a computer without authorization or in excess of authorized access. RUFADAA's distinction between the content of electronic communications and other digital assets, and its provisions deeming a fiduciary an authorized user, are drafted around those statutes (¶¶ 1360, 1370).
Why the Act matters for digital assets of value. Much of the literature on RUFADAA concerns e-mail, photographs and social media. For a fiduciary administering crypto-assets, the Act matters in three ways. First, it gives the fiduciary a statutory route to the records of a hosted account: the catalogue of transactions, the account history and, where the custodian permits, access to the account itself. Second, it makes the fiduciary an authorized user of the decedent's devices and of digital assets not held by a custodian, which is the legal footing for a fiduciary's attempt to recover a self-custodied wallet. Third, it leaves untouched the fact that a self-custodied asset can be moved only by a person who has the key material. The Act confers authority to recover such an asset and provides no means of doing so (¶ 1380).
Organization. Paragraph 1310 traces the problem the Act addresses, the 2014 uniform act and its rejection, the competing industry model and the 2015 revision, and surveys adoption and the principal non-uniform enactments. Paragraph 1320 examines the definitions and the Act's scope. Paragraph 1330 examines the hierarchy of user directions and the treatment of terms-of-service agreements. Paragraph 1340 covers the procedure for disclosure. Paragraph 1350 examines the provisions for each type of fiduciary. Paragraph 1360 covers fiduciary duty and authority and the computer-fraud question. Paragraph 1370 covers custodian compliance, the Stored Communications Act and the cases. Paragraph 1380 applies the Act to digital assets of economic value. Paragraph 1390 sets out model provisions and a checklist.
Related chapters. Chapter 1 sets out the Act's definition of "digital asset" alongside the definitions used by other regimes. Custody models and the difference between hosted and self-custodied assets are examined in ch. 9. Estate planning for digital assets is treated in ch. 21, and key-succession arrangements in ch. 22. Trustee duties over digital assets are discussed in ch. 14, and fiduciary liability for lost keys in ch. 16.