Spiro J. Verras Blog

Tuesday, December 27, 2016

The Nexus of Digital Assets and Estate Planning

What is the Florida Fiduciary Access to Digital Assets Act?

Today, many individuals conduct their affairs digitally through the use of email, social media, computer storage of digital pictures and music, as well as online bank and investment accounts. What they may not realize, however, is that this portfolio of assets will live on after they die.

Until recently, there was no clear guidance under Florida law concerning the legacy of these assets. Back in March, however, Governor Rick Scott signed into the law the Florida Fiduciary Access to Digital Assets Act. The law, which became effective on July 1, is designed to enable Florida residents to plan for the management and disposition of their digital assets in the event they become incapacitated or die.

In short, the law provides a specific process to give designated fiduciaries - such as personal representatives, trustees, custodians and attorneys-in-fact, the authority to access, control or copy digital assets and accounts. Digital assets are designed as any information stored on a computer and other digital devices. This includes emails, text messages, online photographs and documents uploaded onto websites, social media accounts and other forms of electronic records or communications.

Previously, some tech companies provided ways to handle accounts after a user's death. For example, Facebook introduced its legacy contract feature in 2015 that allows a family member or friend to manage or close a user's account after death. Similarly, Google and Twitter provided a mechanism to shut down user accounts after being notified of an individual's death.

The Act prioritizes who can control the disclosure or non-disclosure of an individual's digital assets. In general the terms of service agreement in an online account, such as Facebook's legacy feature, will have control, unless the user leaves specific instructions naming a custodian in estate planning documents. There are also specific procedures for how fiduciaries can request disclosure of digital assets from a custodian.

The Takeaway

While estate planning has customarily enabled individuals to name an executor to manage their assets after they die, digital assets were left lingering in the cloud so to speak. Now, Florida residents have a legal mechanism for protecting their digital assets after death. In planning for the handling of these assets it is important to make an inventory of all online accounts, memberships, domain names, blogs, and any stored digital content. More importantly, it is crucial to engage the services of an experienced estate planning attorney to ensure the legacy of your digital assets. 

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