In today’s increasingly digital world, it is crucial to consider digital assets when creating an estate plan. In Florida, the management and disposition of digital assets in estate planning and administration are governed by the Florida Fiduciary Access to Digital Assets Act (Chapter 740), enacted in 2016. This article will explore the importance of incorporating digital assets into your estate plan, the challenges you might face in doing so, and how the Florida Statutes address these issues.
Florida Fiduciary Access to Digital Assets Act
The Florida Fiduciary Access to Digital Assets Act (Chapter 740) is a part of the Florida Statutes and provides the framework for fiduciaries, such as personal representatives, trustees, agents, and guardians, to access, manage, and distribute digital assets. The Act clarifies the rights and responsibilities of fiduciaries with respect to digital assets and ensures that they have the legal authority to access and manage these assets on behalf of the person they represent.
Procedure for Disclosing Digital Assets
Florida Statute 740.005 outlines the procedure for disclosing digital assets, allowing the custodian to:
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Grant a fiduciary or designated recipient full access to the user’s account;
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Grant a fiduciary or designated recipient partial access to the user’s account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
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Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter. Furthermore, a custodian is not required to disclose deleted digital assets or assets that impose an undue burden on the custodian when segregating them.
Importance of Including Digital Assets in Estate Planning
Incorporating digital assets into your estate plan is essential for several reasons:
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Preserving your digital legacy: Your digital assets, such as photos, videos, emails, and social media accounts, hold sentimental value and document your life. Including them in your estate plan ensures that they are preserved and passed on to your loved ones.
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Protecting your financial interests: Digital assets, like online bank accounts, cryptocurrencies, and digital investments, can have significant monetary value. Proper estate planning ensures that these assets are managed and distributed according to your wishes.
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Preventing identity theft and fraud: Unauthorized access to your digital accounts can lead to identity theft and fraud. Estate planning can provide safeguards to protect your digital assets and prevent misuse.
Challenges in Digital Estate Planning
Despite the importance of including digital assets in estate planning, several challenges can arise:
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Difficulty in locating and accessing digital assets: Due to the intangible nature of digital assets, locating and accessing them can be difficult without proper documentation and account information.
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Privacy concerns and legal barriers: Many online service providers have strict privacy policies that can limit the ability of fiduciaries to access digital assets. The Florida Fiduciary Access to Digital Assets Act addresses these concerns by providing a clear legal framework.
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Rapidly changing technology and legislation: As technology evolves, so do the types of digital assets and the laws governing them. Staying current with these changes is crucial to ensure proper management and distribution of your digital assets.
Including digital assets in your estate plan is vital in today’s digital age. The Florida Fiduciary Access to Digital Assets Act provides a legal framework for fiduciaries to manage and distribute digital assets in accordance with the wishes of the individual. By addressing digital assets in your estate plan, you can ensure the proper management and preservation of your digital legacy for your loved ones. It is recommended to consult with an experienced estate planning attorney, such as those at our law firm, to help navigate the complexities of digital assets in Florida estate planning.
For more information on Florida law and probate, you can explore the following resources:
These resources will provide further insight into the intricacies of estate planning, probate, and business succession planning in Florida.
DIGITAL ASSETS IN FLORIDA PROBATE
740.005: Procedure for Disclosing Digital Assets
The first step in disclosing digital assets is for a fiduciary (executor, trustee, or guardian) to request access from the custodian, the entity that holds or manages the digital assets. This section outlines the custodian’s discretion in granting access, assessing administrative charges, and exclusions from disclosure requirements.
Custodian’s Discretion in Granting Access
A custodian may provide access to the digital assets, but they are not required to do so. Instead, they have discretion to:
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Grant full access to the user’s account
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Grant partial access to the user’s account, allowing the fiduciary to view only specific assets
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Provide a copy of the digital assets the custodian deems reasonably necessary for the fiduciary to perform their duties
Assessing Administrative Charges
A custodian may charge a reasonable administrative fee for the cost of providing access to digital assets, as long as the fee does not exceed the actual cost incurred.
Exclusions from Disclosure Requirements
Certain digital assets are exempt from disclosure, such as those that:
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Would violate federal copyright law
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Are part of a computer program that is protected by a trade secret
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Are stored on a device owned by the user and not in the custody of the custodian
740.006: Disclosure of Content of Electronic Communications of Deceased User
The second part of the Act, section 740.006, deals with the disclosure of the content of electronic communications of a deceased user. This includes emails, text messages, and social media communications. To request access, the fiduciary must provide the required documents and satisfy any additional custodian requests.
Required Documents for Disclosure Request
To request access to the content of electronic communications, a fiduciary must provide the custodian with:
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A written request for disclosure
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A certified copy of the user’s death certificate
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A certified copy of the court order or other document granting fiduciary authority
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Evidence linking the deceased user to the account, such as an account number or username
Additional Custodian Requests
The custodian may request additional information or documentation to verify the identity of the deceased user and the authority of the fiduciary. This may include:
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An affidavit stating that disclosure of the content of electronic communications is reasonably necessary for the fiduciary to perform their duties
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A court order stating that the deceased user had consented to the disclosure of their electronic communications, or that the court finds the disclosure is in the best interest of the user’s estate.
Conclusion: The Importance of Digital Estate Planning
In today’s digital age, managing and protecting your digital assets is an essential part of estate planning. By understanding and following the guidelines set forth in the Florida Fiduciary Access to Digital Assets Act, you can ensure that your digital legacy is secure and accessible by your designated fiduciaries.
At Zoecklein Law, we understand the complexities of digital estate planning and can help you navigate the ever-evolving digital landscape. Our experienced team is ready to assist you in safeguarding your digital assets, allowing you to have peace of mind knowing that your online presence will be taken care of according to your wishes.
Don’t wait to secure your digital legacy. Contact Zoecklein Law today for a free consultation at (813) 501-5071. Our knowledgeable and compassionate team is here to answer your questions and guide you through the digital estate planning process. Let us help you protect your valuable digital assets and create a comprehensive estate plan tailored to your unique needs.
SOME ADDITIONAL RESOURCES:
REQUESTING GMAIL RECORDS FOR AN ESTATE
Google has a specific procedure in place for handling requests to access the email account of a deceased user. Note that gaining access to the account isn’t guaranteed, as Google evaluates each request on a case-by-case basis to protect the privacy of the deceased user.
Follow these steps to submit a request for Gmail records of a deceased person’s account:
Step 1: Gather Required Documents
Prepare the necessary documentation, which may include:
- The death certificate of the deceased person.
- A document that proves your authority as the executor, administrator, or personal representative of the estate. This could be a court order, a will, or other legal documents.
Make sure you have scanned copies or clear photographs of these documents, as you will need to submit them to Google.
Step 2: Contact Google
Visit the “Obtain data from a deceased user’s account” page: https://support.google.com/accounts/troubleshooter/6357590
Step 3: Await Google’s Response
After submitting your request, Google will review the information and documents provided. This process may take several weeks or longer, as Google carefully evaluates each case. You may be asked to provide additional information or documentation.
Keep in mind that Google may not grant access to the Gmail account, even if you are the executor or an immediate family member. Google’s priority is to maintain the privacy of the deceased user, and they will consider various factors before making a decision.
If your request is approved, Google will provide you with further instructions on accessing the Gmail records.
SOME RELEVANT STATUTORY PROVISIONS
740.005 Procedure for disclosing digital assets.—
(1) When disclosing the digital assets of a user under this chapter, the custodian may, at its sole discretion:
(a) Grant a fiduciary or designated recipient full access to the user’s account;
(b) Grant a fiduciary or designated recipient partial access to the user’s account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
(c) Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
(2) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter.
(3) A custodian is not required to disclose under this chapter a digital asset deleted by a user.
(4) If a user directs or a fiduciary requests a custodian to disclose under this chapter some, but not all, of the user’s digital assets to the fiduciary or a designated recipient, the custodian is not required to disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or the fiduciary may seek an order from the court to disclose:
(a) A subset limited by date of the user’s digital assets;
(b) All of the user’s digital assets to the fiduciary or designated recipient, or to the court for review in chambers; or
(c) None of the user’s digital assets.
740.006 Disclosure of content of electronic communications of deceased user.—If a deceased user consented to or a court directs the disclosure of the content of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the personal representative gives to the custodian:
(1) A written request for disclosure which is in physical or electronic form;
(2) A certified copy of the death certificate of the user;
(3) A certified copy of the letters of administration, the order authorizing a curator or administrator ad litem, the order of summary administration issued pursuant to chapter 735, or other court order;
(4) Unless the user provided direction using an online tool, a copy of the user’s will, trust, power of attorney, or other record evidencing the user’s consent to disclosure of the content of electronic communications; and
(5) If requested by the custodian:
(a) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
(b) Evidence linking the account to the user; or
(c) A finding by the court that:
1. The user had a specific account with the custodian, identifiable by information specified in paragraph (a);
2. Disclosure of the content of electronic communications of the user would not violate 18 U.S.C. ss. 2701 et seq., 47 U.S.C. s. 222, or other applicable law;
3. Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or
4. Disclosure of the content of electronic communications of the user is reasonably necessary for the administration of the estate.
740.007 Disclosure of other digital assets of deceased user.—Unless a user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalog of electronic communications sent or received by the user and digital assets of the user, except the content of electronic communications, if the personal representative gives to the custodian:
(1) A written request for disclosure which is in physical or electronic form;
(2) A certified copy of the death certificate of the user;
(3) A certified copy of the letters of administration, the order authorizing a curator or administrator ad litem, the order of summary administration issued pursuant to chapter 735, or other court order; and
(4) If requested by the custodian:
(a) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
(b) Evidence linking the account to the user;
(c) An affidavit stating that disclosure of the user’s digital assets is reasonably necessary for the administration of the estate; or
(d) An order of the court finding that:
1. The user had a specific account with the custodian, identifiable by information specified in paragraph (a); or
2. Disclosure of the user’s digital assets is reasonably necessary for the administration of the estate.
History.—s. 8, ch. 2016-46.
740.008 Disclosure of content of electronic communications of principal.—To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives to the custodian:
(1) A written request for disclosure which is in physical or electronic form;
(2) An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
(3) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(4) If requested by the custodian:
(a) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or
(b) Evidence linking the account to the principal.
History.—s. 9, ch. 2016-46.
740.009 Disclosure of other digital assets of principal.—Unless otherwise ordered by the court, directed by the principal, or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over the digital assets or with general authority to act on behalf of the principal a catalog of electronic communications sent or received by the principal, and digital assets of the principal, except the content of electronic communications, if the agent gives the custodian:
(1) A written request for disclosure which is in physical or electronic form;
(2) An original or a copy of the power of attorney which gives the agent specific authority over digital assets or general authority to act on behalf of the principal;
(3) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(4) If requested by the custodian:
(a) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the principal’s account; or
(b) Evidence linking the account to the principal.
History.—s. 10, ch. 2016-46.
740.01 Disclosure of digital assets held in trust when trustee is the original user.—Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalog of electronic communications of the trustee and the content of electronic communications.
History.—s. 11, ch. 2016-46.
740.02 Disclosure of content of electronic communications held in trust when trustee is not the original user.—Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian:
(1) A written request for disclosure which is in physical or electronic form;
(2) A certified copy of the trust instrument, or a certification of trust under s. 736.1017, which includes consent to disclosure of the content of electronic communications to the trustee;
(3) A certification by the trustee, under penalty of perjury, that the trust exists and that the trustee is a currently acting trustee of the trust; and
(4) If requested by the custodian:
(a) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or
(b) Evidence linking the account to the trust.
History.—s. 12, ch. 2016-46.
740.03 Disclosure of other digital assets held in trust when trustee is not the original user.—Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account, a catalog of electronic communications sent or received by an original or successor user and stored, carried, or maintained by the custodian in an account of the trust and any digital assets in which the trust has a right or interest, other than the content of electronic communications, if the trustee gives the custodian:
(1) A written request for disclosure which is in physical or electronic form;
(2) A certified copy of the trust instrument, or a certification of trust under s. 736.1017;
(3) A certification by the trustee, under penalty of perjury, that the trust exists and that the trustee is a currently acting trustee of the trust; and
(4) If requested by the custodian:
(a) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or
(b) Evidence linking the account to the trust.
History.—s. 13, ch. 2016-46.
740.04 Disclosure of digital assets to guardian of ward.—
(1) After an opportunity for a hearing under chapter 744, the court may grant a guardian access to the digital assets of a ward.
(2) Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a guardian the catalog of electronic communications sent or received by the ward and any digital assets in which the ward has a right or interest, other than the content of electronic communications, if the guardian gives the custodian:
(a) A written request for disclosure which is in physical or electronic form;
(b) A certified copy of letters of plenary guardianship of the property or the court order that gives the guardian authority over the digital assets of the ward; and
(c) If requested by the custodian:
1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the ward’s account; or
2. Evidence linking the account to the ward.
(3) A guardian with general authority to manage the property of a ward may request a custodian of the digital assets of the ward to suspend or terminate an account of the ward for good cause. A request made under this section must be accompanied by a certified copy of the court order giving the guardian authority over the ward’s property.
History.—s. 14, ch. 2016-46.
740.05 Fiduciary duty and authority.—
(1) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
(a) The duty of care;
(b) The duty of loyalty; and
(c) The duty of confidentiality.
(2) A fiduciary’s or designated recipient’s authority with respect to a digital asset of a user:
(a) Except as otherwise provided in s. 740.003, is subject to the applicable terms-of-service agreement;
(b) Is subject to other applicable law, including copyright law;
(c) In the case of a fiduciary, is limited by the scope of the fiduciary’s duties; and
(d) May not be used to impersonate the user.
(3) A fiduciary with authority over the tangible personal property of a decedent, ward, principal, or settlor has the right to access any digital asset in which the decedent, ward, principal, or settlor had or has a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
(4) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, ward, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including under chapter 815.
(5) A fiduciary with authority over the tangible personal property of a decedent, ward, principal, or settlor:
(a) Has the right to access the property and any digital asset stored in it; and
(b) Is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including under chapter 815.
(6) A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
(7) A fiduciary of a user may request a custodian to terminate the user’s account. A request for termination must be in writing, in paper or electronic form, and accompanied by:
(a) If the user is deceased, a certified copy of the death certificate of the user;
(b) A certified copy of the letters of administration; the order authorizing a curator or administrator ad litem; the order of summary administration issued pursuant to chapter 735; or the court order, power of attorney, or trust giving the fiduciary authority over the account; and
(c) If requested by the custodian:
1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
2. Evidence linking the account to the user; or
3. A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subparagraph 1.
History.—s. 15, ch. 2016-46.
740.06 Custodian compliance and immunity.—
(1) Not later than 60 days after receipt of the information required under ss. 740.006-740.04, a custodian shall comply with a request under this chapter from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.
(2) An order under subsection (1) directing compliance must contain a finding that compliance is not in violation of 18 U.S.C. s. 2702.
(3) A custodian may notify a user that a request for disclosure or to terminate an account was made under this chapter.
(4) A custodian may deny a request under this chapter from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary’s request.
(5) This chapter does not limit a custodian’s ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under this chapter to obtain a court order that:
(a) Specifies that an account belongs to the ward or principal;
(b) Specifies that there is sufficient consent from the ward or principal to support the requested disclosure; and
(c) Contains a finding required by a law other than this chapter.
(6) A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good faith in compliance with this chapter.
History.—s. 16, ch. 2016-46.
