Article on Disposition of Digital Assets in Georgia
Estate planning law tells us that following an individual’s death, the disposition of that individual’s tangible property, such as a car or a house, whether he died intestate or with a thorough estate plan, will pass on to his or her heirs. Probate and estate issues are governed by state law and Georgia’s laws are codified in the Georgia Code in Section 53 where the disposition of tangible property can be found. What is lacking in Georgia’s wills, trust, and estate laws is what happens to other forms of property such as digital assets. With the ever-increasing reliance and usage of the internet this issue needs to be addressed. Currently, there is no federal law with regard to the disposition of digital assets, and state law that has thus far been adopted is scarce. However, in 2015 the Uniform Law Commission (ULC) drafted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) with a twofold purpose expressed in a prefatory note.
First, it 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 fiduciaries of their users, while respecting the user’s reasonable expectation of privacy for personal communications.
This Note will support the position that states, and Georgia in particular, should adopt a version of RUFADAA but should first strongly consider and redraft some of the language. This Note will advocate in part on the potential adoption of federal law requiring users to sign an online tool before gaining access to a website. Further, this Note proposes a reorganization of the three tier distribution system of digital assets found in the Revised Uniform Fiduciary Access to Digital Assets Act which would allow estate planning documents, if drafted later in time, to trump the online tools articulated designations.
Part II of this Note will provide the background needed for a thorough understanding of the problem. This section will provide the definition and examples of digital assets, provide the history of how digital assets have been handled over the years, as well as provide an understanding of current federal and state law regarding this issue. This section will also analyze how Georgia in particular has dealt with digital assets. Part III will outline important aspects of RUFADAA and analyze the benefits as well as potential consequences of a strict adoption of RUFADAA. Part IV will advocate for Georgia to adopt RUFADAA but with a few changes to better handle possible issues. Part V will be a conclusion summarizing this Note.