In 2016, Florida passed the Florida Fiduciary Access to Digital Assets Act (the “Act”) to allow Florida’s probate law to develop with the digital age. Much like the traditional probate code, the Act regulates who and when someone may legally access a decedent’s digital assets.
What is a Digital Asset?
A “digital asset” is any electronic record in which an individual has a right or interest. This term includes the underlying asset if that asset is itself an electronic record. For example, the money in your online bank account is not a digital asset because the underlying money is physical. But, the photos, digital books, documents, emails, blogs, cryptocurrency, reward points, and other information stored on a digital device are considered a digital asset because it is, in and of itself, an electronic record.
Who May Access Your Digital Assets?
Generally, only a fiduciary or designated recipient may legally access your digital assets upon your death. When an individual passes away, the court will appoint someone to maintain and/or distribute the estate’s assets to the designated recipients. This person, referred to as a fiduciary, is defined by the Act to include a personal representative, guardian, agent, or trustee. The Act also provides that the decedent may direct the disclosure of digital assets to a designated recipient in a will, trust, power of attorney, or other record.
When May a Fiduciary or Designated Recipient Access Your Digital Assets?
A fiduciary acting under an estate plan that does not address digital assets must obtain a court order to gain access to the content of electronic communications. But, if your estate plan addresses digital assets, the fiduciary or designated recipients may access the content of electronic communications and other digital assets when they supply the custodian with:
- A written request for disclosure;
- A certified copy of the death certificate of the user;
- A certified copy of letters of administration, order authorizing a curator or administrator ad litem, order of summary administration, or other court order; and
- A copy of the user’s will, trust, power of attorney, or other record showing the user’s consent to disclosure of the content of electronic communications.
Content of electronic communications include any writing, images, or data transferred by or to the decedent that is not readily accessible to the public. For example, emails or private messages are considered content of electronic communications. Other digital assets include all digital assets that are not considered content of electronic communications. For example, this may include photos or messages available to the public, digital currency, online accounts, or information stored on a digital device. And a custodian is a person or entity, like Facebook or Yahoo, that carries, maintains, or stores a digital asset of a user.
While a custodian retains the discretion to grant a fiduciary or designated recipient full or partial access to the decedent’s account, the custodian must not disclose content of electronic communications without a court order or consent by the decedent. Thus, if your estate plan does not address digital assets, the fiduciary must obtain a court order directing the custodian to release the specific electronic communications.
Why Should Your Estate Plan Include Digital Assets?
Without an estate plan protecting digital assets, your family may experience financial stress and lose memories.
First, a decedent who does not protect their digital assets may cause their family to experience financial stress. According to a study performed by McAffee, the average American has over $55,000 in digital assets.
When a decedent passes away, their estate must be administered according to their estate plan or state intestacy laws. To properly administer the estate, a court must appoint a fiduciary to locate and safeguard all of the estate’s assets. No one may legally access the estate’s general assets until a fiduciary is appointed by the court. If your estate plan does include digital assets, there may be a dispute regarding who should be appointed fiduciary of the digital assets which will create financial stress. For example, if you have automatic payments for bills or monthly subscriptions, you would be unable to legally access those accounts to make or cancel payments until a fiduciary is appointed.
Even after a fiduciary is appointed, they must obtain a court order to gain access to content of electronic communications. Moreover, the estate may be forced to go through probate if digital assets are not included in the estate plan. This process can be expensive, time-consuming, and emotionally tolling on your family. But, it can be avoided with proper planning.
Second, a decedent who does not protect their digital assets may cause their family to lose sentimental memories. If a decedent passes away without addressing their digital assets, the decedent’s fiduciary may not have access to the decedent’s photos, internet posts, emails, or videos. Valuable content such as emails or private writings may also be lost if the court does not order the custodian to provide the fiduciary or designated beneficiaries with that content.
An unfortunate, but all to common, example of the emotional toll associated with failing to include digital assets in an estate plan is displayed when a family member passes away. Often times, there is valuable sentimental content or conversations stored in the deceased’s online messages or notes that are lost forever.
How Can You Protect Your Digital Assets?
- Create a list of your digital assets with the corresponding password, username or account number, and evidence linking the account to you.
- Designate a recipient to have (or not have) access to the digital asset through a tool provided by the custodian. For example, Facebook allows you to choose a “legacy”.
- Meet with an Estate Planning Attorney to draft or amend your will, trust, and/or power of attorney so that your digital assets will be devised properly upon your death and your family can avoid the financial and emotional stresses associated with probate.
If you have more questions about protecting your digital assets, reach out to one of our estate planning attorneys or fill out our website contact form.