So much of our everyday lives involves the use of “digital devices” (e.g. laptops, desktops, tablets and smartphones) to access various online services and open “online accounts” through which we communicate and share our lives with others, and conduct numerous personal and business activities. By doing so, we preserve our “day-to-day life histories” through generating a mass collection of digital accounts, which are stored in several online accounts maintained through several online service providers.

For many of us, our use of the Internet and our “online presence” is our primary means of sharing with others our personal lives (use of websites such as Gmail, Snapchat, YouTube and Spotify to share our email communications, photographs, videos and playlists), engaging in social interactions (use of websites such as Facebook, Instagram, LinkedIn and Twitter), establishing and controlling various financial accounts (which include not only banking and investment accounts, but also accounts maintained at Amazon.com, eBay, PayPal, and online income tax filings, mortgage payments and similar financial transactions), establishing and controlling various consumer accounts (such as purchasing arrangements through Amazon, Best Buy and other consumer transactions, including credit card records), setting up and using domain names or blogs, and recording and maintaining various loyalty program benefits (such as airline travel mile rewards and credit card cash back or reward points). And yet, while so much of our daily living is consumed by our online activities, most of us have never stopped to consider what happens to the records of all of our online activities and the accounts through which we engage at the moment of our death or in the event of our incapacity. All of these online accounts and records have come to be known as our “digital assets,” and these digital assets become just as much a part of our personal “estates” as our cars and homes.

Internet users must choose whether or not to disclose assets

As a result of conflict between online “custodians”, such as Google and Facebook, family members and fiduciaries of individuals who have passed away or become incapacitated needing or wanting to access a deceased or incapacitated individual’s “digital assets,” and sometimes even Federal and State law regulating the unauthorized access to “digital devices” and “digital assets;” in March of 2016, Florida adopted a body of law titled the “Florida Fiduciary Access to Digital Assets Act” (the “Florida Digital Assets Act”). The main purpose of the Florida Digital Assets Act is to provide online users who establish various online accounts, and thereby create digital assets, to choose for themselves whether to allow Internet service providers such as Google and Facebook to disclose their digital assets to fiduciaries or other third parties upon their death or incapacity. However, the most critical aspect of the Florida Digital Assets Act is that it does not operate automatically, but must deliberately be made applicable by specific language in a “governing document” which expressly permits such access by an individual’s fiduciaries to his or her digital assets. Failure to deliberately express such intent places access to an individual’s digital assets in jeopardy of being subject to the terms of service agreements and/or the policies of Internet service providers such as Google and Facebook, which may not allow access to a deceased or incapacitated individual’s digital assets, at least not willingly.

The Florida Digital Assets Act provides the only guaranteed way to override provisions in a terms of service/use agreement

At the time of establishing an online account, the online service provider generally provides a “terms of service” or “terms of use” agreement. Most of the time when presented with those terms, we simply click “I Accept” or “I Agree” without ever reading the sometimes lengthy “fine print.” If those terms of service or terms of use agreements provide that the Internet service provider is not required to provide any third party access to the account or any digital assets created through use of such account, those provisions could prevent access to the digital assets and the information and records stored in such account. The Florida Digital Assets Act provides the only sure way to override provisions in a terms of service or terms of use agreement is for the individual to provide in his or her Last Will and Testament, Trust, Power of Attorney, or through a Guardianship court order that the fiduciary does, in fact, have the right and authority to fully access the individual’s digital assets, and to access and use the digital device(s) where such digital assets may be stored. Because the Florida Digital Assets Act requires specific action by an individual user to authorize his or her fiduciaries access to his or her digital assets, it is critical for each individual to review his or her estate planning documents to make certain they specifically cover digital assets and specifically require an online service provider to allow access by the individual user’s fiduciaries to his or her digital assets.

Users can set some disclosure preferences with online tools

Some online service providers, such as Google or Facebook, may create an “online tool” which is completely separate and distinct from the general terms of service or terms of use agreements, whereby the user provides instructions either directing disclosure or non-disclosure of his or her digital assets upon his or her death or incapacity. Examples of online tools which some Internet service providers make available to online users to establish their direction for disclosure or non-disclosure of digital assets to third persons are the Facebook Legacy Contact feature and Google’s Inactive Account Manager. Under the Florida Digital Assets Act, if an online tool has been used to prohibit or limit disclosure of digital assets associated with that online account, it overrides any contrary indication in a Last Will and Testament, Trust, Power of Attorney, or Guardianship order. For instance, if a person has either selected to “memorialize” or “permanently delete” a Facebook account upon their death using the applicable “online tool,” a deceased account owner’s fiduciary will not be able to log into or have full access to and control over such account, despite any contrary directions set forth in such individual’s Last Will. Therefore, in addition to reviewing one’s estate planning documents, it is important to review accounts such as Facebook and Google to determine if any direction of disclosure or non-disclosure has been made through use of an “online tool” (which, again, must be a designation separate and distinct from the general terms of service or terms of use), and then make certain that if full disclosure is desired, such indication has been properly reflected through that online tool or that one deactivates the online tool directions.

You must preserve your digital inventory

Equally as important to giving a fiduciary access to one’s digital devices and digital assets is to prepare and to securely preserve with one’s Last Will or other estate planning documents an inventory of all digital devices, an inventory of all online accounts, and an inventory of all log-in and access information to these digital devices and digital assets, such as usernames, passwords, and answers to “security” questions.

Due to the magnitude of digital assets each of us create through use of the Internet, it is important to make certain that those digital assets we wish to be preserved for the benefit of our families and friends are in fact done so. With the Florida Digital Assets Act providing the only secure mechanism to preserve those digital assets and enable disclosure to our fiduciaries and other third parties, it is now necessary to undertake a review of our estate planning documents and online accounts to make certain that our wishes are made clear. Given that the Florida Digital Assets Act was newly enacted in 2016, it is likely existing estate planning documents will need to be properly amended to correctly implement the digital asset disclosure directions required under the Florida Digital Assets Act.