Fitzgibbons Law Offices
1115 E. Cottonwood Lane
Casa Grande, AZ 85122
Who Will Inherit Your Digital Assets When You Die?
If your estate plan or other written instructions do not designate who will have access to your digital assets upon your death or incapacity, the person who is responsible for your earthly estate may have little or no access to your property in the cloud.
In the digital world we live in, most people own a trove
of digital assets. From bank accounts to Facebook, PayPal and more, a
significant part of our personal and financial lives is online. Digital assets
can include digital photos, social media accounts, websites, emails, text
messages, backups to the cloud, and the like.
In 2016, Arizona adopted the Revised Uniform Fiduciary
Access to Digital Assets Act (FAADA). Under FAADA, a fiduciary or person with
legal authority (trustees, personal representatives, and agents under powers of
attorney) has the ability to access and distribute the digital assets of the
deceased or incapacitated person to whom they have a fiduciary duty.
FAADA provides a priority system for distribution of
First, if the company holding the digital assets
(Facebook, Google, etc.) allows the user to name another person to have access
to the user’s digital assets, the user’s online instructions will have priority.
Second, if the user does not name another person,
the user may provide for the disposition of digital assets in a will, trust,
power of attorney, or other written instrument.
Third, if the user has not provided any
direction, either online or in an estate plan or other written document, the
company’s terms of service for the user’s account will control.
If the terms of service do not address fiduciary access,
the law requires the custodian of the digital assets to provide only limited
access – e.g., a catalogue of the communications showing the addresses of the
sender and recipient, and the date and time the message was sent.
As a result of this law, you should include a provision
in your will, trust, power of attorney, or other written document to designate
who has access to your digital assets and what will happen to your digital
assets upon your death or incapacity. If such a designation is not properly
outlined in an estate plan or other written document, fiduciaries may have
limited or no access to your digital assets.
Therefore, it’s important to have your estate plan
reviewed to make sure that your digital assets can be accessed and transferred
according to your wishes. Please contact our office to schedule an appointment
with one of our attorneys to review your estate plan.
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