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When you die, are your digital assets accessible?

Senior Editor Regular News

When you die, are your digital assets accessible?

RPPTL drafts legislation to address the ‘chaos’

Senior Editor

Once upon a time, we walked into banks to cash our paychecks. We glued precious photos in albums for safekeeping. We kept important papers in file cabinets.

But in today’s paperless, high-tech world, paychecks are deposited electronically and bank statements arrive online. Photos pile up in the invisible cloud. And many documents are stored as data on a computer server and accessed via the Internet.

J. Eric Virgil What happens when someone dies, and the executor of the will needs access to online accounts, but doesn’t have the passwords? What happens if someone becomes incapacitated and can no longer log on to computers, and a guardian needs access to accounts?

“Just about everybody in Florida is using the Internet, whether you are young, old, or in between. People have eBay accounts, Amazon accounts, photo sites, Google Plus, Dropbox, online banking, you name it. Well, our current law doesn’t tell our fiduciaries how to access or control those assets. It’s unclear. For every account, the fiduciary doesn’t know whether they have the ability to access or control that account or not. There is chaos, basically,” said J. Eric Virgil, a Coral Gables attorney who chairs the Digital Assets Committee of The Florida Bar’s Real Property, Probate and Trust Law Section.

The RPPTL Section wants to remove that uncertainty, and is ready to make Florida the first state in the country to adopt the latest version of the national Uniform Law Commmission’s Uniform Fiduciary Access to Digital Assets Act. (Delaware was the first state to pass a law this summer, under an earlier version of the model law, Virgil said.)

RPPTL Chair Michael Dribin, of Miami, said the Executive Committee approved the proposed legislation, “and it is likely it will go before the Florida Legislature in 2015.”

“I do estate planning, and I feel fortunate if someone died and left a list of passwords in some secure place,” Dribin said. “The issue is, even if someone left passwords, technically, right now, a personal representative can use the passwords, but there really is no statutory authority for a fiduciary to do that. It is necessary to fill that need and address what is an increasing issue as we go paperless in the world.”

Virgil — who drafted Florida’s proposed legislation and shared a white paper written by Vice Chair S. Dresden Brunner called “Proposed Enactment of Chapter 740, Florida Statutes” — said: “The nice thing about this legislation is that it was created as a joint project between lawyers that deal with fiduciaries, estates and trusts. And the tech people, like Google and Facebook, were part of it, as well as federal criminal authorities who deal with privacy and anti-hacking laws.”

While the proposed legislation would add a new chapter to Florida statutes, Virgil stressed, “We’re not changing any property laws at all, only giving access to fiduciaries. We’re not trying to do anything to how people own their digital assets, just how people access those digital assets.”

The proposed legislation seeks to protect privacy rights, while providing a clear set of rules on accessing digital assets, treating them like other assets.

Virgil said the most well-known case illustrating the clash between privacy and access is Ajemian v. Yahoo!, out of Massachusetts.

As Virgil describes: “Ajemian died and his family was trying to get access to his Yahoo! email account. Yahoo! took the position they couldn’t give that information under federal law, even though the family had court authority under probate court. They were in court for over six years, fighting about this. They even fought about whether the jurisdiction was in Massachusetts or California, where Yahoo! is located. What ended up happening, the court said the family could access the account, but could only see the headings: the ‘to and from’ and subject line.”

In the current situation in Florida, Virgil said: “If I die, and if my personal representative doesn’t have my password, it is not clear if an institution will give them access to an account. And criminal laws could prohibit that person using my password. You are basically an unauthorized user. The law is not clear.. . .

“The law that makes this complicated is the federal privacy and anti-hacking law. That law is trying to protect people’s privacy and protect against hacking, which is a good thing. But that protection makes access to digital assets very complicated. We were trying to figure out how can we still protect people and make this easier for everybody.”

Virgil gives this advice when crafting a will: “You really need to do a digital inventory or leave that type of document somewhere for people who are going to handle your affairs can find. That list would have the different accounts you have online, whether bank accounts, or social media, or vendor accounts, like an Amazon business. List all of those things and list email accounts. Passwords are trickier, because people change them. But if you have a list of all digital and email accounts, at least people will know where to look.”

The four common types of fiduciaries are:

* Executors or administrators of deceased persons’ estates;

* Court-appointed guardians or conservators of protected persons’ estates;

* Agents appointed under powers of attorney; and

* Trustees.

According to the Uniform Law Commission, the Uniform Fiduciary Access to Digital Assets Act “is an overlay statute designed to work in conjunction with a state’s existing laws on probate, guardianship, trusts, and powers of attorney. Enacting UFADAA will simply extend a fiduciary’s existing authority over a person’s tangible assets to include the person’s digital assets, with the same fiduciary duties to act for the benefit of the represented person or estate. It is a vital statute for the digital age, and should be enacted by every state legislature as soon as possible.”

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