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Digital assets and estate planning

Florida is one of the states that has adopted the Fiduciary Access to Digital Assets Act, Revised. This is part of an attempt to clarify who has rights to digital materials after a person’s death. In the past, a fiduciary could go through a person’s physical effects and decide what to do with them, but even if the fiduciary has been given passwords to the deceased’s online accounts, it may still be against the website’s terms of service to access the site.

According to the RUFADAA, if the site offers tools that the person has used to designate a fiduciary to manage the account, this remains valid. If the user did not use the tools or there is no such option, the user can give the fiduciary access in a will, a trust or another written document. If there is no direction from the account holder, then the terms of service regulate what the fiduciary can do. If there are no instructions from the site or the user, the fiduciary can access information, such as email addresses, but not content.

People who are creating an estate plan should review all digital assets and sign up for any tools that allow the person to appoint someone to take over the account. They might also want to include instructions in their estate plan about digital assets.

Like other types of assets, some digital assets may have monetary value while others might have sentimental value. For example, a person might have meaningful photos, emails and writings that only exist digitally. A person may also want to specify that some of these digital assets are destroyed. As with other aspects of the estate plan, the person should also review the plans for digital assets regularly and make sure they still reflect the person’s wishes.