By: Suzanne E. Ward
When Justin Ellsworth was killed in Iraq in 2005, his family requested that Yahoo grant them access to Justin’s Yahoo e-mail account. Yahoo refused, forcing Justin’s family to sue Yahoo to gain access. Ultimately, the Michigan probate court did not grant Justin’s family access to his e-mail account, but did order Yahoo to provide copies of his e-mails to his family.
After Karen Williams’ son died, Karen found her son’s Facebook username and password and emailed Facebook requesting that they maintain his account so she could look through his photos and posts. Within hours of receiving Karen’s e-mail, Facebook changed the password. After a two-year legal battle, Karen was finally given access to her son’s page for ten months until Facebook removed it.
These are just two examples that highlight the need for legislation regarding access to digital assets upon an individual’s death or incapacity. On July 1, 2016, a new Florida law called the Florida Fiduciary Access to Digital Assets Act, Florida Statute Chapter 740 (the “Act”) went into effect. The Act is based on the Revised Uniform Fiduciary Access to Digital Assets Act. The Act allows a Florida resident who uses the internet (the “User”) to plan for the management of and access to his or her digital assets should the User die or become incapacitated. This article provides a summary of the Act and how the Act affects you and your estate planning documents.
Why Do We Need the Act?
Until recently, most of our personal information, such as bank account statements and bills, was mailed to us and we had a tangible paper record of such information. In this digital age, many of us pay our bills online, rely on the cloud for storing important documents and use social media to post updates and share photos. Often our goal is to limit the amount of paper files and documents we have. But when you pass away, become incapacitated or become unable to manage your affairs, how does your fiduciary gain access to your digital assets and online accounts? The Act attempts to provide a legal framework for solving these issues.
What is a Digital Asset?
A digital asset is any electronic record in which the User has a right or interest. Practically speaking, digital assets are items such as e-mails, text messages, online photographs, documents stored in the cloud, electronic bank statements and social media accounts. Digital assets include the following: (1) information stored on a computer or other digital device, (2) content such as notes and documents uploaded onto a website, (3) rights in digital property, such as domain names and (4) the catalog and content of all electronic communication. The catalog of an electronic communication is basic information, such as the name of the person with whom the User has had electronic communication, the electronic address of the other person and the date of the communication. The content is the substance of the electronic communication, such as an e-mail or attached document or photograph. A digital asset does not include the underlying asset or liability, unless such underlying asset or liability is a digital asset. For example, if the User has an online brokerage account, the data about the User’s stock holdings is considered a digital asset. However, the User’s actual ownership interest in the brokerage account (and the securities contained in such account) is not considered a digital asset. In the previous example, and pursuant to the Act, the fiduciary will have access to the electronic records regarding the stock holdings, but the fiduciary will not have any access to the securities contained in the brokerage account.
What Does the Act Do?
The Act allows the User to direct in his or her will, revocable trust or durable power of attorney (the “Estate Planning Documents”) how the User would like his or her fiduciary to manage the User’s digital assets upon the User’s death or inability to manage his or her affairs. The Act does not govern the disposition of digital assets, but rather allows the User to specify how much access to give the fiduciary to the User’s digital assets. For example, the User can grant the fiduciary full access to the catalog and content of all electronic communications and all digital assets, or the User can limit the fiduciary’s access to only the catalog of electronic communications.
If the User does not specify his or her intentions regarding digital assets in the Estate Planning Documents, then the Act allows the fiduciary to access the User’s catalog of electronic communications and all other digital assets (but does not allow the fiduciary to access the content of the User’s electronic communications).
The Act also provides custodians (the “Custodians”) of digital assets (for example, Facebook and Microsoft are custodians) with full immunity from liability if the Custodian acts in good faith compliance with the provisions of the Act.
How does the User Direct Fiduciary Access to the User’s Digital Assets?
The User may direct how much access the User’s fiduciary will have to the User’s digital assets using one of the following methods (each method is discussed in more detail below): (1) through a terms-of-service agreement (the “TOS Agreement”), (2) through an “online tool” or (3) in the User’s Estate Planning Documents. If the User does not specify his or her intentions regarding fiduciary access to the User’s digital assets using one of the previous three methods, then the Act governs and provides that the User’s fiduciary will have access to the User’s catalog of electronic communication and all digital assets (note the fiduciary will not have access to the content of electronic communication).
The TOS Agreement is an agreement between the User and the Custodian and usually requires the User to agree to certain terms and conditions to use the online program. If the User must make a separate and distinct choice in the TOS Agreement regarding access to digital assets upon the User’s death or incapacity, then the specific direction in the TOS Agreement controls over the Estate Planning Documents or online tool. If the TOS Agreement does not require the User to make a separate and distinct choice regarding digital asset access, then the direction in the User’s Estate Planning Documents or direction using an online tool controls.
An online tool is an agreement with a Custodian that indicates the User’s intent regarding his or her digital assets. An online tool is specific to each Custodian. For example, Facebook’s online tool is called the “Legacy Contact” and Google has the “Inactive Account Manager.” Any direction that the User provides in Facebook’s Legacy Contact is only applicable to Facebook, not to other Custodians. Additionally, as long as the User has the ability to modify or delete his or her direction at any time using the online tool, then any direction through the online tool will control and the access cannot be modified in the User’s Estate Planning Documents. If, however, the online tool cannot be modified, then the User’s Estate Planning Documents can provide direction for access to such digital account.
It is important to note that the Act does not impact electronic communications and other documents found on the User’s employer’s computer system because these documents remain in the employer’s custody.
The Impact of the Act?
The Act is a planning tool that can be used to ensure that the fiduciary who is handling your affairs also has the ability to manage your digital assets upon your death or incapacity. We are incorporating new language into our estate planning forms to ensure that our clients have the option to plan for the management of their digital assets. Please contact us if you would like to discuss the Act and any changes you may wish to make to your estate planning documents in light of this new law.
For more information about the Florida Fiduciary Access to Digital Assets Act or if you would like to make changes to your estate planning documents in light of this new law, please contact your lawyer. If you are not currently a client of our firm, we welcome you to contact one of the lawyers from Trenam Law’s Private Client Services Group.
