As we move further into the digital age, more and more questions arise regarding the right of access to digital information after a person’s death. Who can have access to online usernames, passwords and accounts? Are they treated differently than other types of property?
In mid-September, New Jersey governor Chris Christie put his signature on a bill that addresses rights related to what are known as “digital assets.” New Jersey Assembly Bill, A-3433, also known as the Uniform Fiduciary Access to Digital Assets Act, or UFADAA, will officially become the law of the state in December, 2017.
Digital Assets Defined
According to UFADAA, a “digital asset” includes any “electronic record in which an individual has a right or interest.” Digital assets do not include the underlying asset—for example, an online system for managing a bank account is a digital asset, but it does not include any funds in the account. The statute identifies a “fiduciary” as “an original, additional or successor personal representative, guardian, agent or trustee.”
Under the new law, a person may use a will, trust, power of attorney or similar document, or any online tool provided by the custodian of an electronic record, to direct that custodian to disclose or refuse to disclose all or some portion of a digital asset. That disclosure can include the content of electronic communications, such as e-mail or social media sites. A fiduciary will considered to have a right of access to digital assets unless the owner of the assets specifically prohibited disclosure or a court has entered an order preventing disclosure.
A fiduciary can also ask a court of law to issue an order granting access to digital assets. All fiduciary duties that apply to non-digital assets also apply to digital assets under the new law, including the duties of loyalty, care and confidentiality. The law also forbids the fiduciary from using his or her authority to impersonate the owner of the property
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