April 12, 2022

Social Media, Digital Assets and E-mail Upon Death (Part II of II)

In 2016, Florida enacted Chapter 740, a new law which became known as the law of Fiduciary Access to Digital Assets. This new law outlines the rules and procedures to allow Personal Representatives, Trustees and other fiduciaries the right to access digital assets and electronic communications. For all of these statutes, Florida has defined a digital asset as an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record. For electronic communication, Florida defaults to the federal definition, which is any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system that affects interstate or foreign commerce, but does not include any wire or oral communication; any communication made through a tone only paging device; any communication from a tracking device; or electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.

Florida Statute 740.007 grants to the Personal Representative of a Florida probate estate the power to gain access to the decedent’s digital assets, unless the decedent expressly forbade such action. The decedent could express such feelings through the decedent’s Will, or through a process provided by the digital asset provider. The custodian of the digital asset can request a certified copy of the decedent’s death certificate, letters of administration and even a separate court order stating that the disclosure of the user’s digital assets is reasonably necessary for the administration of the estate.

Florida Statute 740.006 grants the Personal Representative access to electronic communications sent to or received by the decedent, with terms similar to Florida Statute 740.007. Once again, the decedent could put measures in place during their lifetime which would prevent this access.

Florida Statute 740.009 grants to the Agent under a Power of Attorney the right to access digital assets and a catalog of electronic communications.

Florida Statute 740.01 grants the Trustee of a Trust access to digital assets that were owned in a revocable trust, when the Trustee was also the original user of the digital asset. Florida Statute 740.03 allows for a similar process when the Trustee was not the original user of the digital asset. In these cases, the custodian of the digital asset may request a copy of the trust and a certification by the Trustee that the trust is still in full force and effect.

Florida Statute 740.04 grants access to digital assets and a catalog of electronic communications to a Guardian of any ward. The statute also suggests that a hearing be held before such access is granted, so that a Judge may consider whether or not such access is appropriate.

To protect the custodians, Florida Statute 740.06 grants the custodian immunity from liability for the faithful performance of these rules. This same statute also gives the custodian 60 days to reply to any requests. Additionally, the custodian may notify the requesting individual that the user had forbade disclosure or terminated the account.

In the ever-changing world of digital assets, especially with the introduction of cryptocurrency and non fungible token, and social media platforms, such as TikTok, Instagram and Facebook, it is good to plan accordingly.

Contact Revis, Hervas & Goldberg P.A.

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