By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Planning & Estate Administration Attorney
New Jersey has a law entitled the “Uniform Fiduciary Access to Digital Assets Act (“UFADAA”)”. The law became effective March 12, 2018.
The issue of accessing digital assets has become an increasingly litigated one over the last 15 years as the number of persons with online accounts and other digital assets has grown significantly. The Act permits certain fiduciaries (i.e. guardian, power of attorney, executor, trustee, etc) to access a user’s digital assets. The Act defines a digital asset as an electronic record in which an individual has a right or interest but does not include the underlying asset or liability unless the asset or liability is itself an electronic record.
What exactly does this Act cover and can I for example, sign a power of attorney specifically giving my agent the power to access my digital assets, such as my Facebook, Amazon, email accounts, etc.? The answer is a qualified “yes”. Facebook, Amazon, etc., as the custodian, must disclose that information to your agent. The same thing applies if your Estate executor after death needs to access your accounts.
Until now companies such as Facebook, Google, etc., have relied on their own terms of service agreement to determine what access they will or will not provide. This is a much needed law. It overrides a custodian’s terms of service agreement as it relates to accessing and using digital assets. There have been a number of legal cases around the country involving disputes over accessing digital assets in which the technology companies have unilaterally decided what they will and won’t do, fairly or unfairly. The UFADAA addresses this. The law does not, however, give the fiduciary any more rights under the terms of service agreement than the user has.
To be clear, this law does not allow for the transfer of digital assets. In other words, I can’t use the UFADAA to transfer my iTunes songs and other content to someone by way of my will unless I otherwise own these assets. Typically individuals are given a license to download content, different than in the old days when you purchased artistic material and became the legal owner.
The new law provides a much needed remedy to the growing problem of access to digital assets. It is important, therefore, to update powers of attorney, wills, trusts, etc. to explicitly provide fiduciaries with the power to access these assets (assuming that you want your fiduciary to have access) and tailor the language in these documents so that it aligns with the new law. Here at Hanlon Niemann & Wright we have upgraded our documents to address this new law.
To discuss your NJ Estate Planning & Estate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.