Florida Enters the Digital Age with New Legislation!

All of us have digital assets and electronic communications. Our Facebook pages, the Google emails, the bitcoins, the domain names… all are new assets since the estate planning profession has been in existence. Much confusion exists as to what a fiduciary can and can not do in dealing with such information. Recently Facebook and Google have provided for alternate contacts should someone die or become incapacitated. Many estate planners have also included language in their documents, hoping that such language will work if the fiduciary has to deal with the Facebooks and Googles of the world. Fortunately, Florida has now come up with a statute specifically addressing digital assets and electronic communications.

On March 10, 2016, Governor Scott signed the Florida Fiduciary Access to Digital Assets (the “Act”) which now creates new Section 740 of the Florida Statutes. The Act generally gives the internet user, who has passed away or becomes incapacitated, the ability to manage and dispose of their digital assets. The new law is effective on July 1, 2016.

While the Act is too comprehensive to cover in this blog, the highlights are as follows. The Act

(1). Defines digital assets, electronic communications, online tools, custodian, user and  terms of service agreements;

(2) Provides rules to request disclosure of digital assets and electronic communications;

(3) Provides guidelines of disclosures to personal representatives, to an agent or attorney-in-fact, guardians and  trustees;

(4) Discusses fiduciary duties and authority;

(5) Applies to ALL estate planning documents whether executed before or after July 1, 2016; and

(6) Provides for custodian compliance and time frames for the custodian to respond to a request from a fiduciary.

ADVICE: Carefully review this Act and update your powers of attorney, Last Wills and Testaments and Revocable Trusts to include language as to whether the Act applies to these assets or whether you want other directions given to the provider to control.

WORD OF THE WEEK: Legacy Contact…is someone you choose to look after your Facebook account after you pass away or become incapacitated. The Legacy Contact has the option to write a pinned post for your profile (ex: to share a final message on your behalf or provide information about a memorial service), respond to new friend requests (ex: old friends or family members who weren’t yet on Facebook), update your profile picture and cover photo and download a copy of what you’ve shared on Facebook. The Legacy Contact can NOT log into your account, remove or change past posts, photos and other items shared on your timeline, read messages you’ve sent to other friends or remove any of your friends.



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