Memorandum of Digital Assets

Summary

This template is a memorandum of digital assets for use in planning for fiduciary access to and control of digital assets upon incapacity and death. This template is non-jurisdictional and can be modified for any state. This template includes practical guidance and drafting notes. Digital assets can survive incapacity or death. Anyone who owns a digital device or has an online account should have a plan for dealing with digital assets. The memorandum does not dispose of any digital assets, but rather aids fiduciaries, such as power of attorney agents, trustees, and executors in identification of digital assets of a person's estate. Provisions for access to and control of a person's digital assets should be included in a power of attorney and a will or trust. You should encourage your clients to research any relevant terms of their service providers. For example, Facebook allows users to designate a "legacy contact" with permission to control and/or delete their accounts upon death. Clients commonly ask whether to share passwords with their authorized fiduciaries. Advise against outright sharing passwords in such a memorandum due to the potential violation of federal law under the Computer Fraud and Abuse Act (CFAA), which prohibits unauthorized access to computer systems or access that exceeds authorized access, or the Stored Communications Privacy Act (SCA), which is part of Title II of the Electronic Communications Privacy Act of 1986. See 18 U.S.C. § 1030 et seq., 18 U.S.C. § 2510 et seq., 18 U.S.C. § 2701 et seq. A majority of states adopted Revised Uniform Fiduciary Access to Digital Assets (RUFADA). Under RUFADA, fiduciaries may legally access a decedent’s digital assets since RUFADA defines the fiduciary as an “authorized user” under any applicable state law. Fiduciary Access to Digital Assets Act § 15(c). However, a fiduciary may not “impersonate” the deceased user. Fiduciary Access to Digital Assets Act § 15(b). Federal courts may look to RUFADA for guidance about whether a person violated CFAA or SCA, but federal courts may not view RUFADA as dispositive regarding violations of CFAA or SCA. Fiduciary Access to Digital Assets Act § 15 cmt. Sharing passwords also creates risk of unauthorized access or identity theft. For a practice note on digital assets, see Digital Assets on Incapacity and Death. For templates of wills and trusts with digital asset provisions, see Will for Single Individual (Basic), Will for Individual with Spouse or Partner (Basic), Revocable Trust for Single Individual (Basic), Revocable Trust for Individual with Spouse or Partner (Basic), and Revocable Joint Trust for Married Couple (Basic). For a resource kit regarding certain digital assets, see Virtual Currency, Bitcoin, and Cryptocurrency Resource Kit in Practical Guidance’s Financial Services Regulation practice area.