Earlier this year, we wrote an article concerning what happens to your digital assets, such as email accounts, social network, on-line bill paying accounts, etc., if you became incapacitated or died.
Our fear was that your credit card bills would not get paid, your family would have difficulty determining where some of your investments were, and your emails would not be accessible.
We are relieved to tell you that the Florida has enacted an adaption of the Revised Uniform Fiduciary Access to Digital Assets Act (the “Act”), effective July 1, 2016.
The Act has two purposes. First, it provides fiduciaries (Personal Representatives, Trustees, Agents under a Power of Attorney, etc.) legal authority to manage digital assets and electronic communications similar to the authority they have to manage tangible assets. Second, it provides custodians (on-line providers, etc. of accounts) the legal authority to work with fiduciaries while honoring the user’s privacy rights. A user is a person that has an account with a custodian.
Importantly, the new law provides immunity to the custodians for acts and omissions done in good faith compliance with the law.
A new concept in this law is the “on-line tool.” This is defined as an electronic service provided by the custodian which allows the user, in an agreement distinct from the terms-of-service agreement, to provide directions to the custodian to disclose or not disclose digital assets to a third person.
The law sets up a priority system to deal with inconsistent instructions.
Priority one is the direction given by the user in the custodian’s on-line tool. A custodian does not have to offer this tool, but if it does, and the user opts to use it, then the direction under the on-line tool overrides any contrary provision in the user’s estate planning documents. However, the on-line tool must allow the user to change directions at any time.
Under priority two, if the on-line tool is not available or the user chooses not to utilize it, then the directions in the user’s Will, Trust, Power of Attorney, etc. apply.
The last priority is what is provided in the term-of-service agreement. Most of these agreements provide for no disclosure. It was because of these agreements, the new law was passed.
This is what you need to do. Check each on-line account to see if an on-line tool is provided. If so, act on it. Have your estate planning attorney show you what your Will, Revocable Trust, and Durable Power of Attorney provide regarding digital assets. If there are no provisions or the provisions are not to your liking, change them. Now!