By Bonie Montalvo
We are currently using technology in unprecedented ways. In 2018, a Pew Research Center survey revealed 73% percent of Americans own desktop or laptop computers, 78% percent own smartphones and a whopping 89% use the internet. Whether consciously or unconsciously, our population has been building a sizeable digital legacy, comprised of pictures, videos, music, games, virtual currencies, and other valuable assets.
We don’t print photos anymore, we upload them to Facebook. We don’t go to video or music stores, instead we buy movies and albums online and access then via our digital galleries. With so much online, the question arises, “what happens to our digital assets when we die?” What happens to your movie and music collection on iTunes? What happens to your pictures on Facebook, or your files on DropBox?
Family members and personal representatives (the person nominated to handle your estate) are left with piles of email messages, social media accounts, and other digital remains that may have significant personal or financial value. Once you pass, it is unlikely that your loved ones will know how to access your accounts, and even if they do, they may have no clear authority to access or manage your digital assets. The Computer Fraud and Abuse Act, along with the Stored Communications Act limit access to your digital assets, even to designated individuals who may have been nominated to access your information. In order to circumvent this hurdle, a majority of the states, Florida included, have adopted the Uniform Law Commission’s (ULC) Fiduciary Access to Digital Assets Act, which provides guidance as to how to handle the digital assets of an individual.
In 2016, the Florida Fiduciary Access to Digital Assets Act was enacted to provide fiduciaries (personal representatives, trustees, agents, etc.) with the ability to access the digital assets of an individual. The Act provides the custodian of the digital assets (i.e. Facebook), the legal authority to interact with the fiduciary of the individual while keeping in line with the custodian’s privacy policies.
If the decedent granted the fiduciary access to the decedent’s digital assets, the fiduciary gains access to the decedent’s digital assets, including the digital asset’s content information. If no access was granted by the decedent or if the decedent expressly prohibited disclosure of the digital assets, fiduciaries can only access the decedent’s non-content information. For example, a fiduciary who was not granted access can only see when an e-mail was sent and received, while a fiduciary who was granted access is able to read the contents of the e-mail.
The Act further provides that a decedent may grant access to his or her digital assets via an “online tool” in which the decedent allows the custodian to disclose the digital assets of the user to a third person. A handful of social media services have a tool that allow users to designate an appointee to manage their accounts once they die. For example, Facebook allows a user to name a “legacy contact” who can post a final message on their behalf at their passing. The legacy contact can also download the photos and videos that the decedent uploaded to Facebook.
Many people are unaware of their digital legacy, however, once they become aware of their digital footprint, many take proactive steps to allow their fiduciaries access to their digital assets. Steps that can be taken, include adding a digital assets clause in your will or trust granting your personal representative or trustee access to your assets. However, never disclose sensitive account information (i.e. account passwords) on your last will and testament, since this information becomes part of the public record at death.
It is up to you to specify how these assets will be distributed, who will have access to these assets and who will be able to manage these assets on your behalf. While you may not “see” it, your digital footprint is rapidly expanding—take action today, it is never too early to start planning for your digital legacy.
This Article does not constitute legal advice and may not be relied upon as such. Each individual’s facts and circumstances are different. If you have any questions regarding your particular situation, please consult with legal counsel.
Bonie Montalvo practices in the areas of estate planning, business succession planning, tax planning, and not-for-profit law. Ms. Montalvo has her LL.M. in Taxation from the University of Florida and is fluent in Spanish.
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