Think About Your Digital Estate Planning Through Maine’s New “MUFADAA” Law.

Brief Summary: The Maine Revised Uniform Fiduciary Access to Digital Assets Act (“MUFADAA”), under 18-C M.R.S. §10-101 -10-118, became effective on July 1st, 2018. MUFADAA allows people to retain control of their digital assets and to plan for their disposition after their death. It also allows fiduciaries to have access to manage and protect digital assets of deceased or incapacitated individuals. This law defines the roles of the “user,” “custodian,” “fiduciary,” and “designated recipient” in relation to a person’s digital assets. The user is a person who has an online account with the custodian of the digital assets. The custodian is a person or entity that transmits, maintains, processes, or stores a digital asset of the user. A fiduciary is a personal representative, a conservator, agent or trustee, who may have access to the digital assets under certain circumstances. A designated recipient is a person chosen by the user using an online tool to administer digital assets of the user. A digital asset is an electronic record that the user has rights or interest to, meaning any online accounts or digital files that you the authority to access. Examples include your text messages, email accounts, emails, documents, blogs, contact lists, social media accounts, cryptocurrency, etc. See 18-A M.R.S. § 10-102.

Details: Under this new law, a user may use an online tool (a service) provided by the custodian to provide direction on how much access, if any, shall be provided to a fiduciary or a designated recipient. If there is no online tool available, or no direction is given through the online tool, the user may provide such direction in a will and/or other estate planning document. Online tools are a significant development because custodians are more likely to adhere to instructions provided through their own tool rather than what is in a user’s legal documents, which can be difficult to locate or to identify the most recent versions.

If the online tool allows the user to modify or delete a direction at all times, then the user’s directions will supersede any contrary direction in other estate planning documents. Also, the directions of the user supersede the terms of a service agreement if the service agreement does not require the user to act “affirmatively and distinctly from the user’s assent to the terms of service.” § 10-104. Generally, if an online tool is used, it supersedes instructions in other documents.

Under this new law, there are some potential restrictions on a fiduciary’s access to digital assets. For example, a custodian may impose an administrative fee and require the fiduciary to provide certain information before obtaining access to certain digital assets. See §10-106 – 10-114.  In addition, the rights of the fiduciary generally remain subject to the terms of service agreement between the user and the custodian and the rights of the fiduciary may be modified by the user, federal law, other applicable law (e.g. copyright law), or the terms of service between the user and custodian. See § 10-116 (2).

Helpful Things to be Aware of and Do Right Now:

  • Be aware that Google’s Inactive Account Man­ager and Facebook’s Legacy Contact are two online tools that you might want to take advantage of now if you would like to control what happens to your digital assets contained on those platforms. Also remember that whoever you designate to have access to your digital assets through an online tool will override anything to the contrary in your other documents.
  • Take these steps:
  1. Make a list of all your digital assets and where they can be accessed. Include passwords, accounts, and property. E.g. Do you own music stored somewhere? Do you have an online store, family photos, or money-earning assets online?
  2. Check the terms of your service agreement to make sure that you own the assets on your list and not just a license to them.
  3. Store your list in a secure location and make sure your family/friends know how to access it. Password management apps may be useful.
  4. Back up data stored in the Cloud for easy access. Do this in a local computer or storage device.
  5. Decide how your assets should be managed and be specific with what you want to do with them.
  6. Decide who your designated beneficiary will be
  7. Think about online tools available to you and whether you want to utilize estate planning documents for your digital asset planning as well.