Feb 3, 2015

Florida digital assets law: update

I discussed estate planning for digital assets in November 2014, noting the obstacles fiduciaries often confront when trying to access a disabled or deceased person's digital assets. Because of  federal privacy laws and a hodgepodge of digital companies' own terms of service, getting access to such assets can be frustrating, and often, futile. 

Digital assets include on-line bank accounts and brokerage accounts, Ebay stores, domain names, etc. They also include accounts that may not have actual monetary value, such as an online photo book or email account. An American Bar Association article on this issue published this month notes that 168 million emails are sent, 695,000 Facebook status updates are posted, 100 people join LinkedIn, 320 new Twitter accounts are created, 600 digital videos are added to YouTube, and 6,600 photos are added to Flickr - every second.

The gap between today's digital reality and today's laws are clearly demonstrated by Bill and Kristi Anderson's experience, which I mentioned in my November post. Their son Jake, a Minnesota college student, was found dead of hypothermia after leaving a party in 2013. His parents, trying desperately to understand the circumstances of their son's death, have been trying since that time to access his phone records. They have had no success, even though his phone was in their name. The Andersons recently appeared before Minnesota lawmakers to argue their case. You can read their story here. 

In our state, the Florida Bar Real Property, Probate and Trust Law Section is currently taking steps to make Florida the first state to adopt the most recent version of the National Uniform Fiduciary Access to Digital Assets Act. Adopting the act would give fiduciaries in Florida the same access to digital assets as they have to physical assets. J. Eric Virgil, the head of the Digital Assets committee, calls the current situation "chaos," adding, “We’re not changing any property laws at all, only giving access to fiduciaries. We’re not trying to do anything to how people own their digital assets, just how people access those digital assets.” You can read more about the proposed legislation here.

In the meantime, the best you can do is make a list of your digital assets, logins and passwords, put it in a safe place, and let your trustee, personal representative and/or agent under your durable power of attorney know where it is. Keep checking this blog for updates on the progress of the proposed legislation.  

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