Florida Probate and Trust Litigation Blog

The Florida Fiduciary Access to Digital Assets Act

As technology continues to advance, a lot of our assets and information are either being stored, or owned in digital form. We rent or purchase movies directly from our devices, store our pictures and music in the cloud, and keep important documents on a separate cloud-based server.

Some digital assets don’t survive the owner. For example, many people are unaware that your Apple iCloud account terminates upon death and cannot be transferred.

No Right of Survivorship

Unless otherwise required by law, You agree that your Account is non-transferable and that any rights to your Apple ID or Content within your Account terminate upon your death. Upon receipt of a copy of a death certificate your Account may be terminated and all Content within your Account deleted. Contact iCloud Support at www.apple.com/support/icloud for further assistance.

The iCloud terms can be viewed at this link, if you are curious. In other words, that comprehensive digital movie collection cannot be passed down, it vanishes with you.   

With that said, our digital assets have tremendous value. Not only are those old family photographs harnessing sentimental value, but digital assets hold financial value, too. Although outdated, McAfee did a study in 2013 that found that digital assets in the US are valued between $35,000 and $55,000. A link to the article can be found by here. McAfee did a very useful infographic summarizing their survey:

The Estate planning lawyers in Florida are beginning to add provisions into wills and trusts authorizing their Trustee or Personal Representative to access their digital assets. But what about those old wills and trusts that lack a provision? What is the law on accessing a decedent’s digital assets? In Probate/Trust litigation, the digital assets may be valuable information to learning about a decedent’s mental capacity or susceptibility to undue influence. Photos, emails, purchases, and web browsing history all provide evidence that may be helpful for a trial.

The Florida legislature has tried to fill in this gap with the Florida Fiduciary Access to Digital Assets Act, which is codified in Florida Statutes Chapter 740. If you would like to review the White Paper for Chapter 740, it can be found here (Chapter 740 WhitePaper.pdf). 

Because of the interplay between “Terms of Service” (like the iCloud one mentioned above), online tools, and the provision in estate planning documents, the Legislature attempted to clarify what documents govern.

How can a user direct the disclosure of digital assets in Florida?

There are essentially two methods of choosing disclosure for digital assets in Florida.

First, a user may use an online tool to direct the custodian to disclose the digital assets (including the content of electronic communications). If you are wondering what an "online tool" is like we were, don't be scared. It is defined 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 provide directions for disclosure or nondisclosure of digital assets to a third person. § 740.002, Fla. Stat. A simple example of an online tool is the Facebook "Legacy Contact" tool.

Second, a user may include a provision in a will, trust, power of attorney, or other record.

These methods of disclosure can be found in Florida Statutes § 740.003.

The interesting thing about this rule, is that the online tool actually has the ability to override the estate planning instrument, so long as the online tool can be modified at any time. And, if there is no direction given, the terms-of-service control

What is the Procedure in Florida for disclosing digital assets?

The procedure is governed by Florida Statute Section 740.005 which provides as follows:

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.

History.—s. 6, ch. 2016-46.

What duties does a Fiduciary have in managing digital assets?

            As you might have guess, the same legal duties that are imposed on a fiduciary for managing tangible personal property, apply for the management of digital property in Florida. These duties include the duty of care, loyalty, and confidentiality.

How does this apply to digital communications?

The Act is extremely specific in separating digital communications from the rest of the digital assets. First it is important to note that there is a distinction between noncontent digital communications and the content of those communications. Florida considers noncontent communications, often referred to as a catalog of communications. Those catalog includes basic limited information like sender, receiver, date, and subject line. Content means the actual message contained in the communication.  Florida has also distinguished the access based on the role of the fiduciary. A Personal Representative, Power of Attorney, Trustee, and Guardian each have different rights to digital communications.
Personal Representative - A Personal Representative can access the contents of digital communications if the decedent consented to disclosure ahead of time (this is an "opt-in" like requirement). A Personal Representative can obtain the catalog of communications (sender, receiver, date, and subject line) unless the decedent opted out.

Guardian - A Guardian can only receive the catalog communications, unless otherwise ordered by the court.  Florida Statutes § 740.04.

Attorney-in-fact - An attorney in fact can access content of digital communications if the principal expressly authorized access in the power of attorney. Florida Statutes § 740.008.

Trustee - The content of communications can be accessed when the Trustee is the original user, or if expressly authorized in the Trust.

This statute is a helpful tool for attorneys and fiduciaries in litigation. Practicing attorneys and fiduciaries need to be aware that this valuable evidence may be accessible.

Contact Us:

PersanteZuroweste brings actions to invalidate estate planning documents and defends claims that estate planning instruments are invalid. If you believe that you may need legal assistance regarding a Florida probate litigation matter, please contact us at (727) 796-7666.

About PersanteZuroweste:

PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities.