Residential MortgageCompliance Monitor

Utah Enacts Uniform Fiduciary Access to Digital Assets Act

The state of Utah has recently enacted the Uniform Fiduciary Access to Digital Assets Act, which clarifies the law regarding access to digital assets in the case of death or incapacitation. The Act will become a new chapter within the Uniform Probate Code, and will be effective as of May 8, 2017.

Digital assets are defined as electronic records in which an individual (referred to in the Act as a “user”) has a right or interest. Some common examples of digital assets include email accounts and their contents, social media accounts and any images they contain, and e-commerce accounts such as eBay and PayPal.

The Act applies to a fiduciary or agent acting under a will or power of attorney, a personal representative acting for a decedent, a conservatorship or guardian proceeding, or a trustee acting under a trust. The purpose of the Act is to grant these custodians access to a user’s online accounts, correspondences, and other computer files, if specified in his or her will, trust, or similar agreement.

Under the Act, a user is permitted to use an online tool to direct a custodian to disclose (or not to disclose) to a designated recipient some or all of his or her digital assets, including the content of electronic communications. The user is also permitted to modify or eliminate the custodian’s access to these assets at any time.

The custodian is given several options with regard to providing information to a recipient that has been designated by the user. He or she may grant full access to the accounts, or may grant partial access if sufficient to perform the task with which he or she has been charged.  The custodian may also elect to provide a copy of a record from a digital asset, rather than allowing direct access.  In addition, a custodian does not need to disclose a digital asset that was deleted by a decedent.  Finally, the Act provides that the custodian’s or recipient’s access to digital assets may be restricted by either federal law or the terms of a service agreement.

The full text is available at:

https://le.utah.gov/~2016/bills/static/HB0383.html

  • 781-402-6431

Zachary Pearlstein, J.D. is a Senior Regulatory Compliance Consultant at Bankers Advisory. He is a graduate of Brandeis University and earned his Juris Doctor at Suffolk University Law School. He is admitted to the Massachusetts Bar.

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