We live in an ever-expanding digital world. Our email, social media and other digital accounts can have either monetary or sentimental value for those we leave behind. Are digital assets related the same as our tangible assets?
Digital assets differ from tangible assets and are governed by contradictory terms of service agreements (TOSA). These agreements coupled with applicable state and federal laws often restrict your ability to provide an authorized person such as a personal representative of a probate estate, a legal guardian for a minor or incapacitated adult, or an agent acting under a power of attorney, access to your digital assets after disability or death. Those authorized individuals may not be able to manage digital assets, receive critical data such as email, on-line financial accounts, digital photo albums, access to the mythical cloud where your data is stored. How can we ensure that our loved ones have access after our death?
The answer lies in the Florida Fiduciary Access to Digital Assets Act (“The Act”). Enacted in 2016, and provides a road map for the management and disposition of digital assets upon death or disability. The Act does require you to show your intent through documentation like a will, trust, power of attorney, or using online tools offered by the individual digital platforms you utilize. It is important to note that any disclosure directions you provide using an online tool will override a contrary direction you make in a will, trust, power of attorney, or other record. A good example of an online tool is Apple’s Digital Legacy option. If you are the legacy contact for a decedent, you can request access to their account and have the Activation Lock removed from their devices.
If there is no online tool manifesting your intent, you may grant authority in a will to include:
The right to access, manage, control, delete and/or terminate any digital accounts.
The right to access and receive the content of electronic communications (emails) to the greatest extent permitted Florida law.
The right to access and receive the catalog(s) of my digital assets (other than email communications) to the greatest extent permitted under Florida law.
The right to access the user’s computer, phone, or similar electronic devices, and anything that the user may have stored in them
If you are interested in more information regarding the protection of digital assets or in creating a comprehensive power of attorney or have probate questions, please contact attorney Don Morrell for a complimentary consultation.