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Digital Probate: Who Controls What You Leave Behind In The Cloud?

In today’s hyper-connected world, it is well worth considering that not all assets are tangible. We are used to disposing of property like homes and cars in our wills, but very often, digital assets are forgotten. There is actually very little legislation currently on the books dealing with digital assets – Florida does not have a specific law on this issue as of this writing – and as such, many people are confused about how to dispose of the assets they have that reside in the cloud.

Digital Assets Defined

The definition of ‘digital assets’ differs slightly between states. Florida’s definition is fairly specific, though it does cover many different classes of items. Examples include financial records, family history photos or written documents, social media and email accounts. However, this can also include items such as business records, especially if your business is conducted through media like Amazon or eBay. These can be very valuable items for your heirs.

Currently, no Florida law adequately addresses the potential fate of these assets. In late 2014, the Uniform Law Center proposed the Uniform Fiduciary Access to Digital Assets Act (UFADAA). The first version was roundly criticized by the technology industry, namely because its terms were said to have potential to cause breaches of the Electronic Communications Privacy Act (ECPA). In other words, the initial version of UFADAA was said to reach too far. In late 2015, however, a revised version was published by the ULC, which restricts fiduciary rights without the explicit disclosure of the decedent. As of this writing, it is before the Florida legislature.

What To Do In The Meantime

While deliberations on the fate of UFADAA continue, it is still necessary for most people to have a plan to adequately distribute their digital assets. However, in most states (Florida included), it is not possible to simply advise an internet provider of your loved one’s death and expect access. Internet providers have a duty to protect the privacy of their users, and will do so unless very specific scenarios occur.

It is generally a good idea to provide someone – possibly even your intended personal representative – with a list of passwords or access codes, so they are able to access your information without having to resort to subpoenas or protracted legal wrangling. The more explicit your wishes in this regard (or indeed, when dealing with any kind of asset that has no legislation governing it), the better – if you want, for example, that a person other than your personal representative to serve as fiduciary for your digital assets, you may say so, and only a claim of undue influence or impropriety will stop that from occurring.

Consult A Probate Attorney

In order to make your wishes known regarding your estate planning, the best thing to do is, as one might expect, consult a good probate attorney. The Hollywood probate firm of Steven A. Mason, P.A. has many years of experience in probate, and is up on the latest developments in the law, so our attorneys can advise you on the best course of action for you and yours. Contact the Fort Lauderdale and Hollywood Law Offices of Steven A. Mason, P.A. for legal advice at 954-963-5900 or leave a message online.

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