Estate Planning for Digital Assets New Law Effective August 8, 2016

Estate Planning for Digital Assets New Law Effective August 8, 2016

By: Brian G. Winter, Esq.

Brian WinterArizona 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 480.630.2464 to schedule your free 30 minute consultation.

Categories: Estate Planning

Contact Us

By clicking here you acknowledge that submitting your information to Owens & Perkins, P.C. does NOT establish an attorney-client relationship. A conflict check must be run prior to you communicating with one of our attorneys.