It is often the case that science and technology gets ahead of the law and this trend has impacted the world of estate planning in a big way. Digital assets and electronic communication medium have been evolving since the emergence of the web and this has presented numerous legal challenges. So, this article is an overview of estate planning for digital assets in Florida and will address the various types of digital assets and the key steps needed to properly plan for their succession to heirs and beneficiaries.
Types of Digital Assets
When, doing digital estate planning in Florida (like other states), it is first important to recognize various kinds of assets which in general are:
- Websites, Blogs or Vlogs (Video Blogs)
- E-mail Accounts and Other Electronic Communications
- Social Media Accounts
- Digital Currencies such as Bitcoin
- Photos and Documents Stored in the Cloud
The above list of assets certainly isn’t exclusive because as technology evolves, so do the various categories and types of digital assets continually change and invite new types and variations. If you’re a Personal Representative in Florida or a Florida Successor Trustee doing a Trust Administration, the thing to remember is that part of your initial investigation needs to be focused on obtaining passwords and identifying on line assets and accounts.
However, undertaking something like doing a probate in Florida is no easy task because in many ways opening a probate is like running a business AND doing the due diligence is difficult enough when it comes to conventional assets that are fairly easy to locate. Things get much more difficult for fiduciaries when it comes to digital assets for a few reasons, the chief of which involves privacy laws.
Privacy Concerns [Digital Assets and Electronic Communications]
If you’ve ever tried to access another person’s e-mail account, even with their permission and password, you may have encountered a series of hurdles to verify identity. These barriers continue to become more sophisticated and represent stringent privacy laws. Privacy concerns, the risk of a custodian of digital assets being sued for violating them have made it very difficult for 3rd parties to obtain necessary account information even with proper motives and documentation.
Simple Estate Planning Steps For Digital Assets
The goal of digital estate planning in Florida (and other states) is then to make the process of making it easier for the above referenced fiduciaries to access these accounts. Effective digital estate planning can be done in a few simple ways as follows:
- Providing a clear statement to authority and appointing someone to manage digital assets; AND
- Clearly identifying all digital assets on a personal property memorandum that is integrated by reference into the estate planning documents.
- Making sure that ancillary documents such as durable powers of attorney in Florida include the appropriate authority needed to access digital records and electronic communication.
However, even with the above steps covered, hurdles remain concerning privacy and digital assets and legislatures across the country are responding.
Florida Fiduciary Access to Digital Assets Act
To address the privacy barriers and related legal concerns, legislatures across the country have been enacting laws to make it easier for fiduciaries to access on line accounts. One example is the Florida Fiduciaries Access to Digital Assets Act which became effective July 1, 2016.
This kind of legislation is based upon a uniform act that is now being adopted by many states and accomplishes 2 purposes in general as follows:
- Provides estate fiduciaries the legal authority to manage digital assets and electronic communication in the same way that they manage other tangible assets; AND
- Provides the custodians of digital assets the authority to deal directly with the estate fiduciaries appointed by the deceased owners while honoring the user’s privacy expectations.
The practical effect of this new Florida law and similar legislation across the country is that it generally provides a forum to for individuals to plan out the authority of estate users to access digital assets. It does this by defining what kind of authority is needed and also provides immunity for the custodians of those assets if they are interacting with fiduciaries in good faith.
So, the takeaway from this article is twofold.
First, understand the importance of including your digital assets and electronic communications as an important part of your overall estate planning in Florida or wherever you are.
Second, if you’re considering an estate planning update checkup in Florida or elsewhere, be sure to include questions and planning concerning these assets and take the steps discussed above.
As a side note, this is so important that if your estate planning attorney in Florida or elsewhere has no knowledge of this area, consider locating another legal adviser.
Remember that as in most other estate planning matters, it is critical to stay proactive and be thorough when doing your planning.