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The New Florida Fiduciary Access to Digital Assets Act
Section 740.002 defines some basic terms that are important in understanding the mechanics of the statute. A “user” is defined as “a person that has an account with a custodian.” An “account” is defined as “an arrangement under a terms-of-service agreement in which the custodian… maintains… a digital asset of the user or provides goods or services to the user.” A “custodian” means a “person that… maintains… a digital asset of a user.” To offer an analogy, a user could be a person that engages in online banking. The custodian would be the bank as well as its agents/employees, the user would be the customer using the online banking, and the account would be the customer’s agreed arrangement with the bank to engage in banking online.
Under the new statute, a user can now grant a fiduciary access to their digital assets by directing their custodian to allow such fiduciary to have access through an online tool that the custodian provides. Under the statute, if this online directive can be amended at any time, the directive then overrides any contrary directive left in a will or estate planning document. If the custodian does not provide this online option, however, the user may include such a directive in his or her will, trust, power of attorney or other document.
The statute provides that a user can grant a fiduciary full access to the account, partial access to the account, or the ability to review a record of the user’s digital assets in the custodian’s control. Additionally, a custodian may refuse to provide the digital asset if the fiduciary requests some, but not all of the assets, and the segregation of the assets would create an undue burden on the fiduciary.
Section 740.006 sets out specific procedures for accessing a deceased user’s online communications. It directs the custodian to disclose the content of a user’s electronic communications if the personal representative of the estate provides certain documents, including a copy of the death certificate and evidence showing the user’s consent. Section 740.007 has similar requirements for the procedure to access “other” digital assets of a deceased user; however, this section automatically gives a fiduciary access unless the decedent prohibited it. Therefore, a custodian shall give a fiduciary a catalog of communications, but excluding the content of such communications, if the fiduciary requests such disclosure, unless prohibited by the decedent.
The new statute also provides for access to digital assets held in a trust, both by trustees who are the original users of the account and trustees who are not the original users of the account. However, if the trustee is the original user, the custodian must automatically provide access to the account, whereas a trustee who is not the original user must provide documentation similar to the formal requirements imposed on a personal representative of an estate to gain access.
Section 740.05 applies the same standards of care concerning a fiduciary’s authority over digital assets as is applied to management of tangible assets. These include the duties of care, loyalty, and confidentiality. Finally, Section 740.08 notes that these new provisions apply retroactively so that previously executed documents are covered.
Although this new Florida statute brings much needed clarity to an area of technology that continues to develop, care should still be taken to properly deal with digital assets in your estate planning documents. You should review your documents and ask your professional advisors whether amendments are needed. If you do not already have a trusted estate planning advisor, we would be glad to help you.