December 13, 2018

Quick Answer #3 – What is the Florida Fiduciary Access to Digital Assets Act?

qa-3-imageQuick Answer

On March 10, 2016, the Governor of Florida signed into law the Florida Fiduciary Access to Digital Assets Act (the “Act”). The Act became effective on July 1, 2016. It is codified in Chapter 740 of the Florida Statutes

The purpose of the law is to allow fiduciaries, such as personal representatives, agents under a power of attorney, guardians, and trustees, to manage the digital assets of a decedent, ward, etc.

A digital asset can generally be described as an electronic record in which an individual has a right or interest. This includes email accounts, financial accounts, online storage of files, and social media accounts such as Facebook and LinkedIn, among others. 

A digital asset does not include the underlying asset or liability unless it is a digital asset. For example, if a user has an online investment account, the data about the holdings in the account is considered a digital asset. However, the user’s ownership interest in the account and the underlying holdings are not considered a digital asset.

General Rules

  • The Act defines a Custodian as a person that carries, maintains, processes, receives, or stores a digital asset of a user.
  • The Act defines an Online Tool as “an electronic service provided by a custodian which allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to prove directions for disclosure or nondisclosure of digital assets to a third person.” Florida Statute 740.002(16).
  • Examples of such an online tool are the Facebook “Legacy Contact” and Google’s “Inactive Account Manager”.
  • The purpose of the online tool is to allow users to choose for themselves whether Google, Facebook, or other custodians should allow access to digital assets upon their death or incapacity.
  • The user can use the online tool to directly opt-in or opt-out. If the user elects to use the online tool, then it “overrides a contrary direction in a will, trust, power of attorney, or other record”. In other words, if you tell Google through the online tool to not let anyone access your account, then it does not matter what your will says.
  • If a user has not used an online tool, or the custodian does not have one, then the user can allow or prohibit access to their digital assets through their will, trusts, and other estate planning documents.
  • If a user does not use an online tool and does not provide any direction in their will, trusts, or other estate planning documents, then the terms-of-service agreement will apply.
  • The Act gives custodians sole discretion to decide on how to grant access to digital assets to fiduciaries. Under section 740.005 of the Florida Statute, the custodian may 1) Grant full access 2) Grant partial access so the fiduciary may perform their duties; or 3) Provide a copy, in a record, of any digital asset. This means for example, the custodian could provide a copy of the digital assets on a CD, USB flash drive, or other media if they so choose, and not provide direct access to the account.
  • Under the Act, a custodian is not required to disclose a digital asset deleted by the user.

Benefits

  • The Act gives individuals the ability to plan for what happens to their digital assets upon incapacity or death through their estate planning documents.
  • The Act provides fiduciaries the legal authority to manage digital assets and electronic communications in the same manner that they manage other types of assets.
  • The Act distinguishes between the contents of electronic communications and the catalog of electronic communications.
  • Individuals can allow or deny access to the contents of electronic communications. For example, the contents of emails sent and received.
  • Individuals can allow or deny access to the catalog of electronic communications. For example, the times, dates and electronic addresses of emails sent and received but not the contents.
  • The Act provides immunity from liability for a custodian and its officers, employees, and agents for an act or omission done in good faith in compliance with this chapter. Florida Statute 740.06(6).

Where to Find Additional Information