Do Not Forget Your Digital Assets in the Cloud

When you think of your “assets,” what are the first things that come to mind? Likely, your tangible assets: your home, car, cash, furniture, documents, clothes, etc. Not surprisingly, people often forget or do not realize that pictures they uploaded onto websites and applications like Facebook and Instagram, information in user accounts on web-based platforms like My Verizon and myAT&T, documents uploaded to the “Cloud,” and emails stored in your email accounts are also “assets” that must be accounted for after a person passes or becomes incapacitated.

These assets, commonly known as “digital assets,” consist of essentially everything you can access via your phone, computer, or tablet. As technology progresses, more and more people are obtaining digital assets. For example, instead of receiving a credit card bill through the mail, people are more frequently utilizing paperless e-bills, where the bill is sent to the person’s email account. That bill-unless printed out and saved in a physical file-becomes a digital asset, and could be relevant to your estate in the future. Similarly, instead of printing out cherished family photographs at CVS or Walgreens, people are uploading pictures to web-based platforms. Those photos are digital assets and are part of a person’s estate upon death. What happens when a family member wants to distribute those cherished assets to other family members? Or what happens when an executor or personal representative of an estate needs to access a deceased’s or incapacitated person’s e-mail account to obtain saved e-mails to address a creditor dispute or to determine the incapacitated person’s intent regarding certain assets? These not-so-simple questions have become very important of late, and, until recently, very few laws were in place to provide guidance.

Several states have enacted laws relating to specifically address these digital assets, including Connecticut, Idaho, Indiana, Nevada, Oklahoma, and Rhode Island. Virginia also allows a personal representative to assume the deceased minor’s terms of service agreement for a digital account “for purposes of consenting to and obtaining the disclosure of the contents of the deceased minor’s communications and subscriber records.” Many other states have also either introduced, or are considering introducing, legislation to address digital assets. Until recently, however, no real uniform approach to dealing with digital assets existed, leaving many people unsure as to how to appropriately manage these assets. Florida, for example, does not currently have statutes that address digital assets. In fact, the Florida Bar has created the Digital Assets and Information Study Committee to specifically study the issues associated with digital assets in estate planning and to review and assess the extent that existing Florida statutes provide solutions as compared to the statutes of other states. The Committee was also created to advise whether remedial legislation should be proposed in Florida.

On July 16, 2014, the Uniform Law Commission approved the Uniform Fiduciary Access to Digital Assets Act, which “provides comprehensive provisions governing access to digital assets.” The Act provides a fiduciary with access to a particular digital asset if the fiduciary would have had access to a similar tangible asset. Further, in governing four different types of fiduciaries-personal representatives of a deceased’s estate, guardians or conservators of a protected person’s estate, agents under a power of attorney, and trustees-the Act has a rather broad reach. Although Uniform Law Commission Acts are not actually laws in states until the states’ legislatures vote to enact the laws, the Acts can nonetheless serve as practical guidance. Considering Florida does not currently have specific legislation regarding how to properly manage digital assets, it is foreseeable that Florida will use the Uniform Fiduciary Access to Digital Assets Act as guidance until specific legislation is adopted.

Because Florida does not currently provide statutory guidance with regard to managing digital assets, it is especially important that people seek proper guidance with regard to addressing digital assets in their estate plan. The technologically-savvy estate planning team at Chepenik Trushin can help you identify your digital assets and ensure that they are fully accounted for in your estate planning documents. Please do not hesitate to contact us for an initial consultation.