Over the past several years, the explosion of technological advances and devices has led to a proliferation of digital assets for almost everyone. Digital assets are those that primarily exist virtually. Some of these assets have financial value, such as cryptocurrency, online investment accounts, or revenue-generating websites, and others have sentimental value, like family photos, videos, or social media accounts.
Whatever the case may be, you must take steps to protect your digital assets in your estate plan or risk your surviving heirs being permanently unable to access those assets. A Florida estate planning attorney at Kramer Green can advise you of the best steps that you can take to protect and preserve those assets as part of your comprehensive estate plan.
- Determine Whether You Own or License the Asset
While you own some digital assets, you do not own other types of digital assets; in some cases, you have purchased only a non-transferable license to use an asset. For example, you own cryptocurrency, nonfungible tokens (NFTs), and your PayPal account balance. You can leave these digital assets to your heirs as part of your estate plan.
On the other hand, you do not own e-books that you have purchased from Amazon or digital art files that you have purchased from iStock. Instead, you have purchased a license for these items. In most cases, according to the “Terms of Service” box that you automatically clicked when you purchased these items, these items are for your personal use only and are non-transferrable. Therefore, you do not own these digital assets and cannot transfer them to your heirs through your estate plan.
- Understand the Effects of the Florida Fiduciary Access to Digital Assets Act
In 2016, the Florida legislature passed the Florida Fiduciary Access to Digital Assets Act (the Act). The purpose of the Act is to allow fiduciaries the ability to access the digital assets of a deceased person, principal ward, or trust, just as if the fiduciary were the digital asset or account holder or “user.” The Act outlines the legal rights of a fiduciary to obtain the content of electronic communications and other digital assets belonging to the deceased user, subject to rights that a user has established in an online provider access-authorization tool, which we will discuss in greater detail in the next section.
The Act provides for four types of fiduciaries and how they can access the content and noncontent of electronic communications and other digital assets, as follows:
- Agent under a Power of Attorney – A power of attorney (POA) should specifically authorize the principal to access the content and noncontent of the user’s electronic communications, as well as other digital assets belonging to the user.
- Guardian of a Ward – Letters of guardianship or a court order are sufficient to allow a guardian to access digital assets of the user, unless otherwise directed by court order or the user. However, guardian cannot access the content of electronic communications unless the user has specifically authorized them to do so.
- Personal Representative of the Estate of Deceased User – The personal representative of the estate of a deceased user can access all digital assets of the user, except for the contents of electronic communications, unless the user specified otherwise or a court order provides otherwise.
- Trustee of a Trust – A trustee can access any digital assets and electronic communications when the trust itself is the user of those assets held by the trust, unless the trust document or a court order indicates otherwise.
- Use the Online Provider’s Access-Authorization Tool to Handle Your Accounts After Your Death – If One Exists
Many online service providers offer access-authorization tools that allow you to designate another person to access your account after your death. For example, Google has established an “inactive account manager” tool that allows you to choose a person to access and manage your account if you should pass away. Likewise, Facebook has a mechanism that allows you to choose a “Legacy Contact” to manage your personal profile.
- Leave Detailed Instructions on How to Access and Handle Your Online Accounts as Part of Your Estate Plan
If an online service provider does not have an access-authorization tool, or even if they do, you also should be sure to leave detailed instructions to your chosen trustee, executor, or agent about handling your online accounts. These instructions should include a complete list of online accounts, usernames, passwords, account numbers, security questions, and any other information your fiduciary might need to access those accounts. Your general estate plan, whether it includes a will or trust, should specifically refer to these instructions and integrate them into the estate planning documents. For security purposes, these detailed instructions might be kept in a safety deposit box or a safe that an heir can access after your death. However, you should be sure to update these instructions periodically as needed, as many accounts require that you regularly change your passwords.
- Ensure that Ancillary Estate Planning Documents Give Authority to Access Digital Assets
Even ancillary documents related to your estate plan should give your fiduciary the legal authority to access your digital accounts. For example, historically, power of attorney documents did not need to include provisions related to the authority to access digital records and electronic communications. However, these documents should now contain appropriate provisions containing this type of authority.
Call Us Today for Assistance with Your Estate Planning Needs
The estate planning lawyers at Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. provide comprehensive estate planning services so that we can minimize the need for probate proceedings in your estate. However, we also offer the full range of estate, probate, and related services when your loved one passes away.
We are here to help your family navigate the complex legal problems that often arise after losing a family member in the most efficient manner possible. Call us at (954) 966-2112 or find out more about our legal services online. Set up a time to talk to us about your legal needs today.