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Trust Law/Level IX · Trusts on chain/9.1 Digital assets in trust/Lesson 5

RUFADAA: fiduciary access to digital assets

How the Revised Uniform Fiduciary Access to Digital Assets Act ranks online tools, wills and trusts, and terms of service, separates content from catalogues, and applies, or does not, to private keys.

Education, not legal advice. Trust law changes from country to country and state to state, and the right structure depends on your situation. Anything you sign should be drafted or reviewed by a qualified lawyer where you live.

The lean path

The cheapest, lowest-tax, simplest and most private route the law allows, best first. Each step names the rule it rests on and the condition that keeps it lawful.

  1. Free and strongest: use a custodian’s online tool to name a designated recipient; under RUFADAA §4(a) it overrides a contrary will or trust if it can be changed at all times. Catch: it covers only that custodian’s account, so update it with the estate plan.
  2. Where no online tool exists, add one clause to the will, trust or power of attorney consenting to disclosure, including content (§4(b)); otherwise content needs the user’s consent or a court order. Catch: it works only where the state enacted the act, with local variations.
  3. Open accounts in the trustee’s name where the custodian allows it: a trustee who is the original user receives everything, including content, under §11. Catch: a later successor trustee is not the original user, so include §12 consent in the instrument too.
  4. For self-custodied coins, §15(c)–(d) already authorise the fiduciary to access the person’s assets and devices without breaching computer-access laws, at no cost. Catch: the act gives authority, not the key; without recorded access instructions the coins stay locked.
  5. Custodians may charge a reasonable administrative fee and must comply within 60 days of a complete request (§§6(b), 16(a)), with a court order as fallback. Catch: enacting states may change the period, so check the local version.

MaterialsThe Revised Uniform Fiduciary Access to Digital Assets Act (2015), final act with comments, free from the Uniform Law CommissionThe Uniform Law Commission’s page for the Act, with its legislative tracking, to check whether a given state has enacted itLesson 9.1.4, on exchange accounts at death, and lesson 9.1.2, on keys and custody

Wonder

  1. If a person used a platform’s online tool and later wrote a will saying something else, which one wins?
  2. Why would the law treat the content of emails differently from a list of who sent them and when?
  3. Does a law about custodians help an executor reach coins held in a hardware wallet?

Explore

  1. The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) was approved by the Uniform Law Commission (ULC) in 2015, revising a 2014 act. It governs when a custodian, a person that carries, maintains, processes, receives or stores a user’s digital assets, such as an email provider or social network, must disclose them to a fiduciary: a personal representative, conservator, agent under a power of attorney or trustee. RUFADAA has been enacted in most US states; the ULC’s tracking page shows the current list, and enacted versions can differ. This lesson explains the uniform act and gives no legal advice.
  2. Section 4 sets a three-tier order. First, a direction given through an online tool, a custodian’s service separate from its general terms of service, overrides a contrary direction in the user’s will, trust, power of attorney or other record, if the tool lets the user change or delete the direction at all times. Second, if the user has not used an online tool, or none is offered, the user may allow or forbid disclosure in a will, trust, power of attorney or other record. Third, either kind of direction overrides a contrary terms-of-service provision that the user did not agree to by a separate, affirmative act.
  3. For a deceased user, §7 requires a custodian to disclose the content of electronic communications, such as the body of an email, to the personal representative only if the user consented or a court directs it. Under §8, unless the user prohibited it or a court directs otherwise, the custodian must disclose a catalogue of communications, meaning who the user communicated with, when and at what electronic address, and other digital assets apart from content. The custodian may ask for a death certificate and the representative’s letters of appointment. The split reflects federal privacy law, the Stored Communications Act, which limits disclosure of content.
  4. Trustees have their own rules. Under §11, unless a court or the trust provides otherwise, a custodian must disclose to a trustee that is the original user of an account any digital asset of the account held in trust, including content. Where the trustee is not the original user, §12 requires the trust instrument to include consent before content is disclosed, while §13 provides for disclosure of catalogues and other assets. Under §6, a custodian may give full access, partial access or a copy. Under §15, a fiduciary’s authority is subject to the terms of service except as §4 provides, and may not be used to impersonate the user.
  5. Crypto held in self-custody usually has no custodian: the keys sit on the owner’s own device or backup. RUFADAA’s disclosure rules therefore do not reach it. But §15(c) gives a fiduciary with authority over a decedent’s, principal’s, settlor’s or protected person’s property the right to access digital assets that are not held by a custodian or subject to terms of service, and under §15(d) and (e) the fiduciary is an authorized user for computer-access laws and may access digital assets stored on the person’s devices. The act gives legal authority, not the key itself: if nobody can find or use the key, the law cannot recover it.
  6. Coins on a custodial exchange are different, because an exchange that stores a user’s digital assets may be a custodian under RUFADAA, so its disclosure rules and the exchange’s own estate process may both apply (lesson 9.1.4). Where coins are held in a multisig arrangement with other key holders (lesson 9.1.3), those holders act under their own arrangements and other law, not under RUFADAA’s disclosure rules. In each case, what a fiduciary can reach depends on the user’s directions, the version of the act enacted in the relevant state and the account terms.

Key facts

  • RUFADAA was approved by the Uniform Law Commission in 2015 and governs when custodians must disclose a user’s digital assets to fiduciaries.
  • Under RUFADAA §4, a direction in an online tool overrides a contrary will, trust or power of attorney, if the tool lets the user change or delete the direction at all times.
  • If no online tool was used, a will, trust, power of attorney or other record can allow or forbid disclosure, and either kind of direction overrides contrary terms of service the user did not separately agree to.
  • For a deceased user, content of communications is disclosed only with the user’s consent or a court order, while a catalogue is disclosed unless the user prohibited it or a court directs otherwise.
  • Under §15(c), a fiduciary has a right to access digital assets not held by a custodian, but the act cannot supply a lost key.
  • Under §15, a fiduciary’s authority over digital assets may not be used to impersonate the user.

Exercise nine, six, three, one

9CollectList up to 9 digital assets or accounts described in this lesson or a source you are reading (some sources give fewer), noting for each whether a custodian holds it and whether an online tool exists.
6ClusterSort them into 6 categories: online-tool directions, will or trust directions, terms of service only, content of communications, catalogues of communications, and assets with no custodian.
3DistillReduce the 6 categories to 3 groups: what the user’s own directions control, what the custodian’s terms control, and what RUFADAA’s disclosure rules do not reach.
1CrystallizeWrite 1 sentence explaining, in your own words, why RUFADAA’s disclosure rules do not help an executor recover a private key held only in self-custody.

Fact check

Dates, figures and claims checked against the published sources listed below.

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