Florida Probate Litigation Lawyer Blog
It is no secret that we are living in a digital world. Our daily lives are spent online paying bills, browsing social media, checking bank accounts, and the list goes on. When you signed up for all of these accounts, you likely did not think to yourself, “I wonder who will manage these accounts if I pass away?” If you did not contemplate this aspect of managing an online account, you would not be alone. Most people do not even read the terms and conditions when creating online accounts. Instead, we take it for granted that digital accounts will make our lives easier, not harder.
But now, Florida and twenty four other states have introduced “Fiduciary Access to Digital Access” Acts, which would allow people to designate someone else to manage their online life after death. In Florida, the Act would authorize a personal representative to have access to specified digital assets of the decedent, authorize a guardian to have access to specified digital assets of a ward, authorize an agent to have access to specified digital assets of the principal, authorize a trustee to have access to specified digital assets held in trust, provide fiduciary rights relating to digital assets, provide that specified provisions in terms-of-service agreement are unenforceable or void as against strong public policy of the state, provide requirements for compliance for custodian, personal representative, guardian, agent, trustee, or another person that is entitled to receive and collect specified digital assets. The Act would also provide for damages if a demand for the trust instrument is not made in good faith by a custodian and provide immunity for the custodian & its officers, employees, and agents for action performed in good faith and in compliance with act.
Until the Acts are put into effect, however, you should still create a game plan for your digital assets just like you would the rest of your assets. Here is how to get started:
• First, inventory your online accounts. Start by making a list of all of your online accounts. Think email accounts, bank accounts, financial portfolios, social media, subscriptions, insurance, student loans, credit cards etc. Whatever you need a username and password for, document it. This can be done on a piece of paper, spreadsheet, or software program. (See our March 3, 2015 post about Facebook’s “Legacy Contact” option).
• Second, put your inventory somewhere safe. Now that you have a list of all of your accounts with your usernames and passwords, put it somewhere safe. If you have a physical list, put it where your designee will be able to find it. If you have a computer generated list, try to password-protect it. Make sure to keep that password in a safe place too. You want to make sure this information is safe from hackers or nosy people that have access to your files. Also, do not forget to update this information as it changes.
• Lastly, designate access to this information. Speak to the responsible people in your life to see who could take over responsibility of this duty. Once you find a person (or two), you can either share your list of accounts with them or advise them where your list will be located. Do not forget to put in writing who the designee(s) is/are so there will be no confusion later on. Provide this information to your estate planning attorney, who will help you update your estate planning documents.
While performing these tasks, be aware that federal privacy laws prohibit others from logging in to your accounts. Next rainy day, read through the terms and conditions for your accounts and find out what you agreed to. Also, consider which accounts are more important than others. You may not want to provide information about your Match.com profile and would be okay with that account languishing into the online abyss. On the other hand, credit card and loan accounts could provide trouble for your estate if the bills are not paid on time.
Ultimately, while the Fiduciary Access to Digital Access Acts are on the way to becoming law, you should protect yourself in the meantime. Be as specific as possible regarding your wishes in all of your estate planning documents. It is important to have a qualified attorney, like those at Chepenik Trushin LLP, to help you navigate the online world.
