By: Brian G. Winter, Esq.
Arizona recently enacted the Fiduciary Access to Digital Assets Act (“FADAA”)
which goes into effect on August 8, 2016.
Prior to FADAA becoming law in Arizona, an individual’s heirs, estate
or legal representatives did not have ownership or access to a deceased
or incapacitated person’s digital assets. Simply stated, digital
assets include all of a person’s online information such as social
media accounts, digital photographs, access to websites, text messages,
etc. The terms of service for the online service provider determined who,
and under what circumstances, the information could be accessed in the
event of death or disability. Even if a person had a valid Will or Trust
which directed how digital assets were to be managed, the customer’s
term of service agreement with the provider overrode a person’s
directives which, at times, prevented their heirs or fiduciaries from
acquiring his or her digital property.
With the passage of FADAA, in Arizona, a legally authorized representative
or fiduciary can now access a person’s digital assets upon their
death or disability. The FADAA provides a three tiered system for how
digital assets can be distributed.
First, if the custodian of the digital property provides an online tool
which permits a user to name another person to have access to the user’s
digital assets, under the FADAA, the user’s online instructions
are legally enforceable.
Second, if the custodian does not have the online tool, or of the user
has not opted to use it, then the user may give legally enforceable directives
in their Will, Trust, Power of Attorney or other written record.
Third, if the user has not provided any online direction through either
the customer service agreement or a valid estate plan, then the custodian’s
terms of services agreement will continue to control whether a fiduciary
may gain access to digital assets and accounts.
With the continuing technological advancements, more and more of a person’s
information and property are being stored online. It is important to know
your rights and how to properly pass on these assets to your heirs and
allow access by your legal representatives. In Arizona, with a proper
estate plan, you can now authorize who has access to your digital property
and what will happen to your digital property on your death or disability.
Please contact our office to have your estate plan reviewed or updated
to make sure that your digital assets will be transferred in accordance
with your wishes on your death or incapacity.
If you would like to work with one of our experienced Attorneys, please call
OWENS & PERKINS at
schedule your free 30 minute consultation.