Estate Planning for Digital Assets

In our digital age, most of us are connected in many ways to the worldwide web to conduct business or to interact with our family and friends around the world. Our online presence has become a vital part of our daily lives, and the amount of personal information stored on the internet (email accounts, digital music-books-photos-games, social network accounts, financial-banking accounts, etc.) and our digital devices (smartphones, laptops, tablets, storage devices, etc.) is quite significant. This information may have important financial and sentimental value, and planning for the proper preservation and disposition of digital assets in the event of death or incapacity has become a growing concern in the estate planning context.

Before opening an email, social media, or other online account, service providers generally require you to agree to their Terms and Services Agreement (“TSA”). TSAs often provide very limited or no access to family members and designated fiduciaries (such as agents acting under a power of attorney, executors of estates, trustees, and court appointed guardians) subsequent death or incapacity of the user. A breach or violation of the TSA, such as the unauthorized access by a fiduciary or family member, may result in the termination and loss of the online account, and in far worse cases result in the commission of a federal or state criminal offense. The enforceability of TSAs have made the task of managing and accessing digital assets in the event of an individual’s incapacity or death a daunting one for fiduciaries.

Recently, Florida has addressed these concerns through the enactment of legislation now allowing fiduciaries to access and manage an individual’s digital assets (see Florida’s Fiduciary Access to Digital Assets Act (“FADAA”), effective July 1st, 2016). Specifically, the FADAA provides users the ability to direct service providers (or custodians as defined under the FADAA) to allow or deny access to digital assets by fiduciaries via an online tool. If the user does not use the online tool, or if the custodian does not provide users with the option of an online tool, users still can give direction on accessibility by specifically incorporating provisions to that effect in their estate planning documents, such as a will, trust, or power of attorney.

With the newly enacted FADAA, you now have the ability to plan with greater certainty on how you wish your digital assets to be managed and handled upon death or incapacity. Fiduciaries who once lacked the legal authority to access your digital assets, can now do so if proper advanced planning is established to deal with your digital assets. It is important to note the FADAA is limited in scope and only applies to fiduciary access to digital assets. Family members who are not designated fiduciaries will be confronted with the limitations set out in TSAs. The estate planning attorney’s at Barbosa Legal can review your existing estate plan, and assist you in establishing a custom plan for the disposition of your digital assets.

Maria Moller