Have you ever wondered what will happen to your emails, digital photos, computerized business documents and online accounts after you are gone? These days, much of our life is housed in cyber space and we may not realize that these “digital assets” hold valuable information, family memories, insider business secrets, and more. The control of these digital assets is now protected under a new Florida Law.
The Florida Fiduciary Access to Digital Assets Act (FFADAA) takes effect on July 1, 2016, which provides new guidelines for trust and estate practitioners to handle their clients’ electronic data. Court appointed guardians are also included in this Act.
The term “digital assets” includes files, which are stored on various digital devices, such as:
- Desktops and laptops
- Mobile phones and smartphones
Digital assets also include:
- Digital music
- Digital photographs and videos
- Software licenses
- Social network accounts
- File sharing accounts
- Domain registrations and web hosting accounts
- Tax preparation accounts
- Online stores and other similar items
How Can Digital Assets be Accessed?
Designated Fiduciaries are granted access to a user’s digital assets in the following ways:
- Using an “online tool” to designate a representative.
- Designate a third party under customary estate planning documents.
Customary estate planning documents include Wills, Trusts, and Powers of Attorney. Trust and estate practitioners must now plan for the disposition of the digital assets owned by their clients. Designating a third party fiduciary in an estate planning document to access a user’s digital assets may include: an attorney-in-fact under a Power of Attorney, an executor/personal representative under a Will, a trustee under a Trust Agreement, and a guardian under a Guardianship Agreement.
Other Details Included in the FFADAA
Full or partial access to a user’s account and a copy of the digital asset are the two items in which the Act gives sole discretion to the Fiduciary. Deleted items by the user are not required by custodians to disclose.
In a nutshell, this new Act makes it simpler for Fiduciaries to gain access to digital assets after a user is deceased. Immunity from liability is granted to the custodian for acts done in good faith compliance with this Act, and Internet users now have the capability to plan for the disposition of their digital assets after death.
Trusts, Estates and Digital Assets
A requirement under this new Act is for users to essentially leave behind instructions for their digital assets either by way of a Will, Trust or Power of Attorney. The user may choose anyone to be in control of their “digital estate,” including attorneys, friends or family members. Digital assets are handled the same as property and tangible assets are handled, making the digital assets part of the whole estate planning process.
Do you have a plan for your digital estate? Craig R. Woodward, Jennifer M. Tenney and Cathrine A. Hunter of Woodward, Pires & Lombardo, P.A. are available for consultation in this and other estate planning issues. Visit www.wpl-legal.com or call 239.649.6555 to learn more.