Fitzgibbons Law Offices - Casa Grande and Maricopa Lawyers

520-426-3824

 
 
 

Ann Schrooten, Casa Grande Estate Planning and Probate Attorney

 

Fitzgibbons Law Offices
1115 E. Cottonwood Lane
Suite 150
Casa Grande, AZ 85122

 
 

Estate Planning

January 2018

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 digital assets:

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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