RECENT CHANGES TO OHIO LAW GIVE ESTATE FIDUCIARIES ACCESS TO DIGITAL ASSETS

House Bill 432, which became effective in March of 2017, contained Ohio’s Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”). RUFADAA provides a digital asset owner’s fiduciaries (namely, his/her agents, guardians, estate representative, and trustees) with specific rights to access those assets. Before this change, fiduciaries could not lawfully access those assets.

Under RUFADAA, "digital asset" means an electronic record in which an individual has a right or interest, but does not include an underlying asset or liability unless the asset or liability is itself an electronic record. Examples of digital assets are online bank, brokerage, vendor, PayPal, email, and Facebook accounts.

RUFADAA gives fiduciaries access to digital accounts under the same legal standards which are applied to tangible property. Key provisions include:

  • An account holder may give direction for disclosure of digital assets, including the content of electronic communications sent or received by the user, via online tools or through his or her estate planning document (e.g. his or her Will or Power of Attorney).
  • The custodian of a digital account, upon receipt of documentation evidencing consent by the decedent, must comply with a request for information within 60 days, and a fiduciary may seek a court order for the custodian’s failure to comply.
  • A court may grant a guardian access to the digital assets of his or her ward, and the guardian may request the suspension or termination of the ward’s digital account.

With the widespread use of digital assets in the consumer and business sectors, it is essential to any estate plan that the owner of such assets make specific arrangements for their fiduciaries to have access to such assets upon his or her incompetence or death.

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