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Fiduciary Access to Digital Assets – Florida’s Version

By Howard C. Stross
October 24, 2016

Action Step: Update your estate plan to reflect the new Florida digital assets law.

Effective July 1, 2016, Florida now regulates a Florida citizen’s digital assets following their death or incapacity. This new law addresses access to and disposition of an individual’s digital assets. Almost everyone today has digital assets. They may include emails, text messages, photos posted online, and social media accounts with such online behemoths as Facebook and Instagram, and other forms of electronic records and communications such as an account with Amazon.

Prior to the new law, it was common for custodians to deny fiduciaries access to digital assets. For their denial, custodians relied on either their terms of service agreement or federal law that protected against disclosure.

The new law provides Florida residents the opportunity to include in their estate and incapacity planning (You have a plan – right?) the power for their successor trustee under a trust based estate plan, a personal representative in probate, a court appointed guardian or an agent under a durable power of attorney to manage and dispose of the person’s digital assets following their death or mental incapacity.

“Digital Assets” Are Defined in the New Law

The new law’s definition of a digital asset is an electronic record in which an individual has an interest. The definition does not include the underlying asset or liability reflected in the electronic record unless the electronic record is by itself an asset. The new law’s definition includes: (i) information stored on a computer and other digital devices; (ii) content uploaded onto websites, e.g. photos and documents; (iii) a person’s rights in digital property, such as domain names or digital entitlements associated with online games; and (iv) a formal or informal catalog and content of an electronic communication.

The new law distinguishes between the content of an electronic communication and a catalog of electronic communications. The content of an electronic communication concerns the substance of the communication that would not be accessible to the public. Examples of content might include an email or text subject line and the body of the person’s email or text message. A catalog of electronic communication is the information identifying each person the deceased or incapacitated person had an electronic communication with, the electronic address of those persons and the time and date of the communications. Federal law distinguishes content material and non-content material to determine what is lawful to disclose.

The new law does not apply to a digital asset of an employer used by an employee in the employer’s business. The new law does not require the custodian to disclose any digital asset deleted by the deceased or incapacitated person.

Rules of Priority For Disclosure of Digital Assets

The new law allows an individual to control the disclosure of some or all of their digital assets and the content of electronic communications. There are three ways to retain control: (1) by using the online tool provided by the custodian of the digital assets online, (2) by the deceased or incapacitated person’s estate or incapacity planning documents; or (3) as stated in the terms of service (TOS) agreement. Direction in the online tool prevails over estate or incapacity planning documents or the TOS. If the custodian provides no online tool direction or the deceased or incapacitated person fails to provide direction using the online tool, the fiduciary must look for instruction in the deceased person’s will or trust, or if incapacitated, in their durable power of attorney. If the deceased or incapacitated person does not include instruction to deal with the disposition of their digital assets online or in an estate or incapacity planning document, the TOS controls.

How To Obtain Disclosure of Digital Assets

The new law tells the fiduciary how to request disclosure of the digital assets from a custodian. Remember, that fiduciary might be a personal representative under a will, an agent under a durable power of attorney, a court-ordered guardian, or a trustee under a trust established by the deceased or incapacitated person.

When the custodian receives the information, it must disclose the digital assets to the fiduciary in its sole discretion in how it discloses those digital assets. If a custodian fails to disclose digital assets or terminate the deceased or incapacitated person’s account, a fiduciary or designated recipient may petition the court for an order demanding the custodian’s compliance. If the custodian complies with the dictates of the new law in good faith, the new law provides immunity to the custodian from liability for its acts or omissions to act in its attempt to comply with the new law.

How and When the New Law Applies

The new law was effective July 1, 2016. It applies prospectively and retroactively. If you are a Florida resident, or you are considering becoming a Florida resident, now is the time to update your estate and incapacity planning documents to include what you want done concerning your digital assets. In your planning for digital assets, your directions may be applied differently to the content of electronic communications and to your other digital assets.

Please contact Stross Law Firm, P.A. at 813-852-6500 to arrange a time to meet with one of our attorneys and discuss establishing and maintaining your estate and business planning, including how to handle your digital assets in light of the new law.

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