By Lucas DeVicente, CFP®, CTFA
Executive Vice President, Wealth Services Advisor
As our lives migrate even further into the digital realm, the definition of “property” continues to expand as everything seems to be transitioning into the digital world. Leaving cash or marketable securities to a loved one at your death can be easy and straightforward but having your trustee and/or personal representative access digital assets can be complex and frustrating. There’s an entire chapter in the Florida Statutes that covers Fiduciary Access to Digital Assets, chapter 740, yet it’s probably like the dishwasher manual – it goes unread.
What are digital assets?
Even if they aren’t aware, most individuals own a form of digital assets that are a crucial part of modern estate planning. Yet despite their prevalence, digital assets remain one of the most overlooked and misunderstood elements of the estate plan. While many people think only cryptocurrencies are defined as digital assets, the definition is far greater. Digital assets are anything you own or control online or in electronic format.
Historically, during an estate settlement, a trustee or personal representative would look at a deceased individual’s tax return to determine what bank or investment accounts they owned. Today, some digital assets such as cryptocurrency, payment accounts, etc., leave no trail, and without an inventory, could be stranded in cyberspace instead of being passed on to whom they were intended or managed appropriately.
While your online family photos stored in “the cloud” might not have financial value – they probably have sentimental value – your online payment accounts, such as PayPal, Venmo or Cash App, along with domain names and social media accounts could hold monetary value, but no way to access it. How do we solve this?
The dilemma
In 2014, the Uniform Fiduciary Access to Digital Access Acts (UFADAA) originally attempted to create access for a decedent’s digital assets by mimicking traditional property whereby the fiduciary could have control of the assets when the owner died or became incapacitated. It was a solid attempt to solve the problem; however, many technology companies argued that UFADAA is contrary to federal privacy and computer fraud laws. They also argued the Act is counter to their “terms of service” agreements to which their clients and customers have agreed and to which the companies are bound by law.
In response, the Revised Uniform Fiduciary Access to Digital Access Acts (RUFADAA) was proposed, and some states chose to enact it in 2015 – Florida included. It limits certain content of electronic communications, unless the deceased person explicitly granted permission. If a personal representative settling an estate needs access to certain types of digital assets, they must petition the court and explain why permission is needed in settling an estate, at times leading to additional delays and expense.
Practical steps for trustees and advisors
Forward-thinking advisors are now working with clients by incorporating their digital inventories into the estate-planning process. They are establishing a comprehensive list of online accounts, wallets and platforms – stored securely and updated annually – which can prevent complications upon death, creating an efficient and more expedient process for beneficiaries.
The list should never be documented in your will, as the will becomes public when probated. Your attorney can draft a provision that prohibits your personal representative from accessing certain assets. That said, it is still important to provide in your will that your personal representative should have appropriate access to your digital assets in order to manage and distribute them, avoiding the roadblocks outlined above.
Digital assets are here to stay and as the convenience of technology grows, so will the many ways in which we use them. We would be happy to address how they work in an estate plan.
About the Author
Lucas DeVicente, CFP®, CTFA is executive vice president and wealth services advisor at Florida Trust Wealth Management in Tampa Bay. He frequently partners with the Family Office Services team, which advises and cares for clients and their families by providing individualized wealth management through life’s transitions. For more information, please visit FloridaTrust.com.
Leave a Comment