Do fiduciary access laws cover employer accounts used by an employee?

Key takeaway

No, for an employer’s digital asset used by an employee in the ordinary course of the employer’s business, Minnesota’s fiduciary access law does not apply.

In Minnesota, for example, that exclusion concerns the employer’s asset and the specified business use. Colorado and Delaware have their own exclusions described below, and other states differ.

For your planning discussion, separate personal accounts from employer accounts. Note who owns each asset, who uses it and what work it supports. Bring unclear ownership questions to your adviser rather than guessing from an account’s name.

Colorado’s employer and entity exclusions

In Colorado, part 15 excludes an employer’s digital asset used by an employee in the ordinary course of that employer’s business.

Colorado also excludes an entity’s digital asset used by a manager, owner or other person in conducting the entity’s internal affairs. “Entity,” “manager” and “owner” have the meanings assigned by Colorado’s business entity statute.

For a business owner’s review, list the business entity alongside each account or asset. Describe the actual use, especially where one person handles both personal and business records.

Delaware’s exclusion includes qualifying contractor use

In Delaware, chapter 50 excludes an employer’s digital assets and digital accounts regularly used by an employee or contractor in the usual course of business.

When preparing a Delaware account list, include whether the user is an employee or contractor and how regularly the account is used for business.

Digital asset. In Minnesota, for example, this means an electronic record in which an individual has a right or interest. It excludes an underlying asset or liability unless that asset or liability is itself an electronic record, and other states differ.

Custodian. In Minnesota, for example, this means a person that carries, maintains, processes, receives or stores a user’s digital asset. Other states differ.

Resources for your next step

Digital assets and property. Open this guide to put the employer account question into the broader discussion of digital records, access instructions and ownership.
Digital estate records and questions checklist. Use this checklist to prepare a focused account review, with personal records and business records identified separately.
Asset and authority map template. Use the template to organize each asset beside the person or organization connected to it and the authority questions you want answered.
Business succession. Continue here if the account review is part of preparing someone else to manage your business. Bring your list of business systems and unresolved ownership questions into that discussion.

A perspective on getting experienced help

For the adviser discussion, mark uncertain account ownership and business use clearly. This talk offers a broader reminder about recognizing when experienced help matters.

"Now, I want to caution everyone watching this today, you have to know what you're talking about. You cannot dabble in the strategies that I'm about to discuss. It does take some work or in the beginning, you could partner with someone that knows what they're talking about."
From an Investor Advantage talk hosted by Richard C. Wilson

Frequently asked questions

What should I gather before asking about a mixed personal and business account?

Gather the account name, provider, ownership records and a short description of its personal and business uses. Identify the employer or entity involved, and flag anything you cannot confirm.

Should my account list include contractor use?

Yes, include contractor use in your planning notes, along with employee use. Record who uses the account, how often and for what business purpose so your adviser can assess the relevant state language.

Sources

The identifiers below connect the state explanations and definitions to their supporting statutory language.

D2, Minnesota employer exclusion. Minnesota section 521A.03(c): This chapter does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.
A2, Colorado employer exclusion. Colorado section 15-1-1503(3)(a): This part 15 does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.
A3, Colorado entity exclusion. Colorado section 15-1-1503(3)(b): This part 15 does not apply to a digital asset of an entity used by a manager, owner, or other person in the course of the conduct of the internal affairs of the entity. The definition provision states: The terms "entity", "manager", and "owner" in this paragraph (b) have the same meaning as defined in section 7-90-102, C.R.S.
A1, Delaware employer exclusion. Delaware title 12, section 5003: Digital assets and digital accounts of an employer regularly used by an employee or contractor in the usual course of business are not subject to the provisions of this chapter.
D1, Minnesota definitions. Minnesota section 521A.02 provides: The definitions in this section apply to this chapter. Digital asset: means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record. Custodian: means a person that carries, maintains, processes, receives, or stores a digital asset of a user.