So much of everyday life involves the use of “digital devices”. Laptops, desktops, tablets and smartphones have become the tools through which we socialize and share our lives with others, and the means through which we conduct numerous personal and business activities. On a daily basis, we use our digital device of preference to access various online services and perform some life function via an online account. By doing so, we preserve our “day-to-day life histories” by generating digital records which are stored and maintained through several online service providers. For many of us, our “online presence” is our primary way of sharing our personal lives with others, engaging in social interactions, managing various financial accounts, making retail purchases through various consumer accounts, setting up and using domain names or blogs, and recording and maintaining various loyalty program benefits. We have online accounts with Gmail, Facebook, Snapchat, Twitter, Instagram, Amazon, eBay, and the list goes on. And yet, while so much of our daily living is consumed by our online activities, most of us have never stopped to consider what happens to the records of all of our online activities and the accounts through which we engage in those activities at the moment of our death or in the event of our incapacity. All of these online accounts and records become our “digital assets”, and these digital assets are just as much a part of our personal “estates” as our cars and homes.
In an effort to resolve conflict between online “custodians” (such as Google and Facebook), family members and fiduciaries needing to access a deceased or incapacitated individual’s “digital assets”, and Federal and state law regulating the unauthorized access to and use of “digital devices” and “digital assets”, in 2016 Florida adopted the “Florida Fiduciary Access to Digital Assets Act” (the “Florida Digital Assets Act”). The main purpose of the Florida Digital Assets Act is to provide the means by which online users may determine for themselves whether to allow Internet service providers such as Google and Facebook to disclose their digital assets to fiduciaries or other third parties upon their death or incapacity. However, the most critical aspect of the Florida Digital Assets Act is that it does not operate automatically. To take advantage of the rights under the Florida Digital Assets Act, an online user must, by specific language in a “governing document”, expressly permit access by an individual’s fiduciaries to his or her digital assets. Failure to deliberately express such intent subjects access to an individual’s digital assets to the terms of service agreements and/or the policies of Internet service providers, which may not readily allow access to a deceased or incapacitated individual’s digital assets.
With the magnitude of digital assets each of us create through our use of the Internet, it is important to make certain that those digital assets we wish to be preserved for the benefit of our families and friends are in fact done so. With the Florida Digital Assets Act providing the only secure mechanism to preserve those digital assets and enable disclosure of them to our fiduciaries and other third parties, existing estate planning documents and contrary online account indications may need to be properly amended to effectively implement the Act’s mandated digital asset disclosure directions.
For more information, contact Bob Bible at (239) 330-1494 or firstname.lastname@example.org.
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