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Wednesday, December 14, 2016

The Nexus of Digital Assets and Estate Planning

What is the Florida Fiduciary Access to Digital Assets Act?

Americans increasingly conduct their affairs digitally through the use of email, social media, computer storage of digital pictures, videos and music, as well as online bank, insurance, and investment accounts. Many people never stop to consider what will become of their online existence if they are incapacitated, and how their electronic property will be administered when they die. Human life is short, but the Internet is forever. Who will manage our digital selves when our biological selves are no longer able to do so?

In 2016, Florida enacted the Florida Fiduciary Access to Digital Assets Act. The law, which was drafted for the Legislature by the estate planning legislation section of the Florida Bar, 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 allows us to give designated fiduciaries - including personal representatives, trustees, custodians, agents and attorneys-in-fact, the authority to access, control or copy digital assets and accounts. Digital assets include any information stored on a computer and other digital form. This includes emails, text messages, online photographs and documents uploaded onto websites, social media accounts and other forms of electronic records or communications.

Faced with the problem of the immortality of our online selves, some tech companies in recent years created strategies for administer accounts after a user's death. For example, Facebook introduced a legacy contact 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. These methods were very limited, and did not allow for information in the deceased user's accounts to be preserved by an authorized fiduciary. 

The Digital Asset 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 in their estate planning documents naming a custodian with authority over digital assets. There are also specific procedures for how fiduciaries can request disclosure of digital assets from a custodian.

The Takeaway

While estate planning has always enabled individuals to name a personal representative to manage their assets after they die, digital assets were left lingering in the cloud so to speak, with no power to access those assets without a court order. 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.

If you have any digital assets, and you don't have a will, a trust, and a durable power of attorney that contains specific language giving your fiduciary authority over digital assets, it is crucial to engage the services of an experienced estate planning attorney to ensure you control the legacy of your digital property.


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