Florida Passes Fiduciary Access to Digital Assets Act

In March, the Florida governor approved a new law called the Florida Fiduciary Access to Digital Assets Act, which allows the loved ones of a decedent to access any digital assets he or she may have owned before death.  This allows loved ones to access the recently deceased’s text messages, emails, online photographs, social media, and other electronic communications that would have otherwise been lost forever.

The act also allows Florida residents to plan for the management and disposition of digital assets should they become incapacitated or unable to manage their digital assets.  Should either of these events happen, a person can grant an authorized fiduciary the power to access, control, or copy digital assets and accounts.

The Definition of Digital Assets

Digital assets under this Act are any electronic record that Florida resident has a right or interest in.  This definition does not include any underlying assets or liabilities of the electronic asset.  Examples of digital assets include information recorded on a computer or other digital device such as an external hard drive.

Digital assets also include content the Florida resident uploads to a website.  This means a probate court would consider a person’s photographs on Facebook to be a digital asset.  Digital assets also include digital property.  This means a probate court would consider a domain name or website to be digital property.  Further, a person’s online character in a video game may be considered digital property.  A person’s digital character in an MMO video game like World of War Craft can be quite valuable for instance.

The catalog and content of electronic communications are also digital assets.  A good example of this may be airline miles the individual accrued over his or her lifetime, or even the music this person purchased on iTunes.  Communications would include text messages and emails.  This means the Digital Assets Act allows loved ones access to treasured texts and emails throughout the years.

Previously, a person’s digital assets were not included in the person’s estate upon death.  Many estate planning attorneys have long clamored for a change to the rules as digital assets become more important with time.  As the assets are now becoming more recognized, they are also now more vulnerable to creditors.  This is why we also recommend these assets be kept in asset protection estate planning tools such as an irrevocable trust.

This law has been effective since July 1, 2016, and also applies retroactively to fiduciaries acting under a will, trust, or power of attorney.  We highly recommend that every Florida resident review their Florida estate planning documents to account for digital assets.  For more information on including digital trusts language contact us today at 904-685-1200.

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