Are Digital Assets Now Automatically Included In Your Will?

Category: Wills

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We’re living in a digital age, which affects everything from how we communicate to what we consider “property” or “assets.” Now, when someone passes away, their loved ones not only have to deal with distributing their tangible assets, they also have to handle their online profiles and digital assets.

Who gets access to someone’s Facebook after they pass away? With new laws being passed throughout the country, we finally have an answer.

On July 1, the Florida Fiduciary Access to Digital Assets Act went into affect, applying prospectively and retroactively to all fiduciaries. We previously wrote about this back in March, before the act was passed. Back then, many fiduciaries could not have access or control over a loved one’s digital assets (passwords, text messages, digital photos, and so on).

Custodians (the websites or organizations responsible for holding your digital assets and information) could easily refuse to give information to fiduciaries. Because of this, a deceased person’s Facebook profile, digital photos, and other like assets existed in an odd digital limbo.

The Florida Fiduciary Access to Digital Assets Act – modeled after the national Uniform Fiduciary Access to Digital Assets Act – was put into place to solve this problem.

What the Florida Fiduciary Access to Digital Assets Act Does

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In short, the act extends a fiduciary’s power to managing not just tangible assets, but also digital assets. This means that custodians must comply with a fiduciary’s requests. In fact, if a custodian does not disclose the proper information to a fiduciary, the issue can be taken up in court.

Your personal representative, for example, may now be allowed to get your Facebook password and delete your account after you pass away. They have the power over your text message conversations, as well as a log of when they were sent, and to whom.

This also means that – whether or not you include instructions for your digital assets in your will, trusts, or other estate planning documents – they will be taken care of.

But does that mean they’ll go where you want them to go? Not necessarily.

What Steps You Need to Take Now

We have written in previous blog posts about good times to update your will and other estate planning documents. With this new law now in effect, it’s a great time to revisit and make any necessary changes to these documents.

You can only change who gets what digital assets by putting this information into an estate planning document or online agreement. So if there is a password or collection of digital assets (say, for example, a text message thread) that you would not like your personal representative or other agent to take care of, you must write that information down.

One of the more important details of the act is that the online Terms of Service (TOS) agreements will trump any clauses or designations in your estate planning documents. Because of this, it is vital that you have your estate planning lawyer comb through different TOS agreements, as well as the documents that include any information about digital assets that have already been included, to make sure all of your wishes and designations are consistent – and actually allowed.

For more information about how to handle digital assets and the way that Florida’s new laws can affect your estate plan, contact an estate planning lawyer today.

About the Author: 

Christopher Q. Wintter is the President of Wintter & Associates, P.A. , a four-lawyer trust and estate firm. Mr. Wintter is a Florida Bar Board-Certified Expert in Trust and Estate Law. With more than 28 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers Magazine for 2011, 2012, and 2014-2016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016 in the area of Estate and Trust Litigation.