Hard Questions: What Should Happen to People’s Online Identity When They Die?

Three planning tips for ensuring fiduciary access to digital assets after death

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In recent posts, we’ve been looking at the issue of digital asset planning, and the requirements under Florida law for different types of fiduciaries to gain access to digital assets after the owner’s death. Here, we wanted to mention some specific ways an experienced attorney can help ensure fiduciaries have access to digital assets when the owner dies.

1. Thoroughly inventory your assets and keep your estate planning documents updated

First, of all, those who own valuable digital assets need to make sure they take stock of everything they own so that they don’t forget anything in the estate planning process. Over time, as changes happen in digital asset ownership, it is important to periodically reevaluate these assets and make sure they are adequately addressed in estate planning.

Taking inventory of digital assets is especially important for guardians, since wards may not necessarily be clear or consistent in communicating their digital asset ownership. Understanding a ward’s situation with respect to digital assets may take a bit of extra care and attention, but it is important to do.

2. Pay close attention to the language surrounding authorization to access/disclose

Both custodians—those responsible for protecting account holders’ privacy—and probate courts pay close attention to digital property clauses in wills, trusts, Power of Attorney forms, and other documents to ensure they contain clear language authorizing access/disclosure. If the language is at all ambiguous, problems may arise for fiduciaries seeking to access those assets after the owner’s death. Owners of digital assets need, therefore, to make sure they clearly communicate their authorization in estate planning documents.

3. Be specific in requesting access to digital assets or termination of accounts

As we noted last time, fiduciaries are required to provide other evidence as laid out under state law in order to gain access to digital assets. Some items must always be provided, such as a copy of the death certificate and documentation establishing the fiduciary’s authority to request disclosure. Other items may be requested by the custodian. Fiduciaries need to be specific in making requests to ensure they are able to obtain disclosure, as failure to do so can cause delay in accessing assets.

An experienced attorney can certainly help in all of these areas, both with taking stock of digital assets and drafting the language authorizing disclosure, as well as with helping ensure fiduciary access to digital assets. When issues arise, the help of a skilled attorney becomes even more necessary to ensure digital assets are addressed and handled properly.



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