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Lawmaker Pushing for New Law Dealing with Digital Data After Death

When we think of the assets in our lives that will pass to others when we’re gone, we normally think of tangible objects of value. Florida citizens may create wills, or set up trusts, to ensure that property of value is passed on to family members after death. But a lawmaker in Florida is now trying to include a unique item in the probate process that many don’t think about when doing end of life or disability planning.

Digital Assets and Data

Our digital assets are often overlooked in the probate process. Digital assets include photos, information, emails and other information that we post on social media, that we email back and forth, and which may be stored online (in the “cloud”) through a number of mass storage services.

Although these items may not have a significant monetary value, they surely have an emotional one. And, many loved ones may want to protect the privacy of the deceased by accessing and removing digital information.

Some digital data can have value, such as money kept in PayPal accounts, Ebay stores or merchandise, or sensitive and valuable business information.

But many companies make it very difficult for family members to access the online data of the deceased. Most larger companies have their own privacy policies, but they each differ, leading to a complete lack of any uniformity. Worse, many companies make it impossible for the deceased’s information to be accessed at all by survivors.

A New Probate Law for Digital Data?

A Florida legislator is trying to change that by passing a law that would dictate specifically how such information is retrieved. The proposal would allow a designated fiduciary or representative to be appointed before death. That fiduciary would then have access to all of the online, digital content of the deceased.

Right now, even if someone has enough foresight to include digital data or online assets on a will, there’s no guarantee that the online companies will honor it and no legal requirement to do so. And even providing access to sites by disclosing passwords before death may not work, as utilizing another’s password even with permission is prohibited by certain site’s terms of service.

But with a uniform law, regardless of a company’s own policies, the law would take precedence. The law would still require that the deceased have a will, and that it address how online accounts are accessed and how assets are distributed. So the law won’t eliminate the need for proper advance planning. But, it will, at least, ensure the desires of the deceased are followed once a will is made.

Florida isn’t alone in this fight. There are actually 8 states that currently have similar laws. And many others are pushing for them. In Minnesota for example, a family of a deceased college student has petitioned for access to the digital data of their child.

It’s unlikely that digital data will create significant litigation because in most cases, it will have a limited economic value. The law really is about easing grief, protecting privacy, and allowing families to have some closure after tragedy strikes–and making sure the directives in someone’s will are honored.

Do you have questions about advance planning, estate planning, or wills? Do you need to know how to protect your loved ones in the event tragedy strikes? Don’t leave your assets to chance. Contact Tampa wills and probate attorney David Toback to discuss your needs.

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