Berks County Bar Association The Berks Barrister Winter 2020-21 - 24

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Pennsylvania Standardizes
Access to Digital Assets
By Robert J. Hobaugh Jr., Esquire

W

hat are your electronic assets? They might include:
(1) written, video or sound data stored on your digital
device, the cloud or another platform, (2) social
media data, (3) financial assets reflected on electronic account
statements, cryptocurrency such as bitcoin, and other accounts
such as PayPal, (4) business data such as copyrights, trade secrets
and employee information, and (5) other accounts such as online
gaming, and credit card or airline points. Unless you prepare and
maintain lists of electronic assets together with passwords, how
can you be certain that people you entrust with your assets will
know about your electronic property or how to access it? Those
lists, if made, are often outdated or incomplete. Accordingly, many
agents under powers of attorney, trustees under trust agreements,
personal representatives of estates and conservators of persons
(collectively, " Fiduciaries " ) struggle to identify, manage and
administer electronic assets. The Pennsylvania General Assembly
has improved the grasp of Fiduciaries by adopting the Revised
Uniform Fiduciary Access to Digital Assets Act ( " RUFADAA " )
with related provisions under Act 72 of 2020 (the " Act " ). The
Act balances the needs of Fiduciaries to access and manage
digital assets with the duties of custodians of those digital assets
( " Custodians " ) and the privacy interests of the owners of those
assets ( " Users " ).
RUFADAA was drafted by the National Conference of
Commissioners on Uniform State Laws ( " NCC " ) and approved
by the NCC at its annual conference held in July 2015. The
NCC says that the purpose of RUFADDA is two-fold. " First, it

24 | Berks Barrister

gives fiduciaries the legal authority to manage digital assets and
electronic communications in the same way they manage tangible
assets and financial accounts, to the extent possible. Second, it
gives custodians of digital assets and electronic communications
legal authority to deal with the Fiduciaries of their users, while
respecting the user's reasonable expectation of privacy for personal
communications. " Revised Uniform Fiduciary Access to Digital
Assets Act (2015), National Conference of Commissioners of
Uniform State Laws, page 1. This balancing of interests can be
seen in the language of the Act.
The Act expressly applies in some circumstances, but not in
others. It applies, on and after its effective date (180 days after
July 23, 2020), to (1) a fiduciary acting under a will or a power
of attorney, (2) a personal representative acting for a decedent
who died before, on or after the effective date, (3) a proceeding
for the appointment of a guardian of an estate, (4) a trustee
acting under a trust created before, on or after the effective date,
and (5) a Custodian if the User lives in Pennsylvania or lived in
Pennsylvania at the time of his or her death. The Act does " not
apply to the digital assets of an employer used by an employee
in the ordinary course of the employer's business. " 20 Pa.
C.S.A.ยง3903(c). The Act does not directly refer to digital assets of
a decedent who used his or her employer's computer to manage
those assets.
The Act specifically addresses disclosure to a Fiduciary of
digital assets as set forth in agreements of the User and in the
User's estate planning documents. First, a " Terms-of-Service


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Berks County Bar Association The Berks Barrister Winter 2020-21

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