La'Rae H. Hendrix P.A.

Estate planning should provide for the handling of digital assets

In Florida and all other states, estate planning for a business is a necessity. An estate planning program can minimize estate taxes, direct the disposition or continuation of a sole proprietorship, and develop a buy-sell agreement between multiple owners. Those are basic planning issues for the business owner. Complications can arise with respect to digital assets, however, which is an evolving and sometimes unclear legal landscape.

Court rulings so far have generally decided that the companies that store the decedent's information have control over it despite what the decedent may have provided in his testamentary provisions. That concept, however, can be countered by a state law that provides access and control by the executor of the estate. One service provider, Yahoo, is presently in ongoing litigation to determine the company's right to shut down an account after the owner's death and to withhold the information from the owner's estate.

Uniform laws are now being developed that will recognize the right of the executor to access the decedent's email accounts, but only if specific permission is provided for by the owner while still alive. That means including in the will provisions that tell the executor what to do with digital assets. These provisions should not get too detailed and should not mention passwords, user names and full account numbers, because the will is a public document. 

Instead, the detailed access information can be stored on software that can be privately accessed by the executor. The key benefit of doing it this way is that the testator can designate which files must be deleted and not revealed, and which files must be accessed and applied by the executor to continuing business functions, or otherwise distributed to named beneficiaries. One other option may have some future value: Google and others have devised systems that allow the account holder to leave instructions for access that would be honored by the storage company and would become effective upon the owner's death. The estate planning attorney will also tailor the testamentary documents and instructions to the executor to be compliant with applicable Florida law.

Source:, "Digital assets make estate planning a business necessity", Michael Kassner, Feb. 23, 2018

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