While most people focus on physical property, investments and traditional bank accounts when considering estate planning, fewer think about digital assets - until an unexpected event brings the issue front and center.
Digital assets can include cryptocurrency, cloud-stored documents, email communications and even online accounts with financial value. In Florida, recent legislative efforts have provided clarity about how fiduciaries can access these assets and what rights clients have to direct their disposition.
Defining Digital Assets in Florida Estate Planning
Florida law provides a comprehensive definition of digital assets, which can broadly be described as any electronic record in which an individual has a right or interest. This includes, but is not limited to, emails, photographs, videos, social media accounts, digital currencies, and online banking accounts. It does not, however, cover the physical device - like a phone or computer - unless the device itself is the asset in question.
A distinction is made between the content of electronic communications and a catalog of such communications. For example, the content of an email is treated differently from the metadata about who emailed whom and when. Understanding this distinction is key, as different legal requirements and privacy considerations apply.
The Florida Fiduciary Access to Digital Assets Act, cited as Chapter 740 of the Florida Statutes, was designed to clarify the rights of personal representatives, trustees, agents, and guardians (collectively referred to as fiduciaries) to access these digital assets in the event of incapacity or death.
It includes (but not limited to):
|
Type of Digital Asset |
Examples |
Access Requirements |
|
Social Media Accounts |
Facebook, Instagram, LinkedIn |
Written request, court order, or consent |
|
Digital Currency |
Bitcoin, Ethereum, Cryptocurrencies in general |
Authority in will/trust or court order |
|
Cloud Storage |
Google Drive, Dropbox, iCloud |
Proof of authority, user’s consent |
|
Email Accounts |
Gmail, Outlook, Yahoo |
Express authority, additional steps |
|
Online Business/Storefronts |
Amazon, Shopify, Etsy accounts |
Authority and court documentation |
Why Digital Assets Matter in Probate and Family Law
The inclusion of digital assets in estate planning is no longer optional for Floridians. Individuals’ lives are increasingly coupled with digital platforms that hold both sentimental and, more importantly, financial value. A failure to properly address these assets can result in confusion, loss of family memories, or even substantial financial setbacks.
There are unique risks associated with digital assets. Accounts may be locked permanently if proper instructions are not left behind, or funds may be lost if heirs and fiduciaries are unaware of their existence. In contested estate or family matters, access to electronic records can provide evidence crucial to a fair outcome or clarify the intentions of a deceased or incapacitated individual.
Florida law now recognizes the authority of fiduciaries over digital assets, provided they follow certain procedures. Without clear direction, however, even a personal representative with full legal authority can face significant roadblocks due to restrictive terms-of-service agreements set by digital custodians (the companies that hold your digital data).
The Florida Fiduciary Access to Digital Assets Act: Key Provisions
The Act grants fiduciaries - personal representatives, trustees, agents under power of attorney, and guardians - the ability to access and manage digital assets on behalf of the user. However, the law also protects the privacy of the original account holder and recognizes the contractual nature of terms-of-service agreements with digital custodians.
A fiduciary’s authority can be established through one of three primary means: the user’s direction via an online tool, a will or trust, or a power of attorney. Notably, a user’s direction using an online tool provided by a digital custodian (for example, Google’s Inactive Account Manager or Facebook’s Legacy Contact) takes precedence over instructions in a will or trust.
How Authority Over Digital Assets is Established
|
Method of Authorization |
Who Can Use |
Level of Control |
Overrides Terms-of-Service? |
|
Online Tool (offered by custodian) |
User |
Specific to each asset/account |
Yes |
|
Will or Trust |
User (via estate planning) |
General or specific |
Yes, if no online tool used |
|
Power of Attorney |
Principal (while alive) |
Limited to what is granted |
Yes, if no online tool used |
Practical Considerations: Procedures and Privacy
To access digital assets, fiduciaries must follow a set of procedures outlined by law. This often includes providing a written request, documentation of authority (such as letters of administration or a certified copy of a trust), and, if requested, additional identifying information or a court order.
The custodian (the company holding the data) may choose to grant full access, partial access, or provide a copy of the digital records.
Privacy remains a central concern, and custodians are not required to disclose assets deleted by the user or to segregate assets in ways that would be unreasonably burdensome. The content of electronic communications generally requires the user’s express consent or a specific court order, reflecting the high standard of privacy applied to such information.
This process can become more complicated in the context of family disputes, contested probates, or guardianships, where multiple parties may have competing interests in a decedent’s or incapacitated person’s digital records.
Table: Requirements for Access by Fiduciary Type
|
Fiduciary Type |
Required Documents |
Special Conditions |
|
Personal Representative |
Death certificate, letters of administration, consent/order |
May need court order for certain assets |
|
Agent under POA |
Power of attorney, certification, request |
POA must specifically address digital assets |
|
Trustee |
Trust instrument/certification, request |
Consent in trust or user direction needed |
|
Guardian |
Guardianship letters, court order, request |
Court hearing required for some access |
Rights and Limitations: What Fiduciaries Can and Cannot Do
The Act aims to balance two competing interests: the ability of fiduciaries to marshal and protect assets, and the privacy of the user. A fiduciary may not gain rights exceeding those the original user had, nor can they circumvent federal privacy or computer access laws.
Importantly, a user’s choice to prohibit disclosure through an online tool or in their estate plan takes precedence. The law also restricts fiduciaries from impersonating users or using access for purposes outside their legal duties.
In the context of trusts, a trustee who is also the original account user may have broader access than one who is not. Courts retain discretion to limit or expand access as circumstances dictate, especially where issues of privacy, family conflict, or alleged wrongdoing arise.
Digital Asset Planning Strategies
The best way to prevent confusion or loss is to proactively include digital assets in estate planning. This can be accomplished by:
- Maintaining an up-to-date inventory of all digital accounts and assets, including access information where possible.
- Using available online tools provided by major custodians to designate beneficiaries or manage post-death preferences.
- Drafting clear, express instructions in wills, trusts, and powers of attorney regarding digital assets, including authorization to access content of electronic communications if desired.
- Coordinating with legal counsel to ensure compliance with both state law and federal privacy requirements.
Considerations may vary for individuals with significant cryptocurrency holdings or online businesses, as the security and recovery of these assets can be uniquely challenging.
Common Questions: Addressing Reader Concerns
Can heirs automatically access a loved one’s emails or social media accounts?
No. Heirs do not have automatic rights to access digital accounts. A personal representative, trustee, agent, or guardian must provide legal documentation and, in many cases, evidence of the user’s consent.
What if the deceased left no instructions?
If a user did not provide direction using an online tool or estate planning document, access may depend on the custodian’s policies and the willingness of the court to grant access. Terms-of-service agreements still apply.
Are digital assets subject to the same probate process as physical assets?
Generally, yes. Digital assets are considered part of the probate estate unless owned by a trust or otherwise excluded. They must be disclosed, valued and, if necessary, distributed per the decedent’s wishes or state law.
What are the risks of not addressing digital assets in an estate plan?
Failure to plan may result in lost assets, locked accounts, or preventable disputes among heirs. Digital evidence can also be important in family law matters, such as proving communication or financial transactions.
The Role of Attorneys and the Future of Digital Asset Law
Attorneys are almost a necessity, as it requires not only a thorough understanding of the Florida Fiduciary Access to Digital Assets Act but also familiarity with federal privacy law, technology, and the unique needs of each client.
Florida continues to update its statutes to reflect new types of digital property and to clarify the rights and obligations of all parties involved. For families, fiduciaries and practitioners, the message is clear: digital asset planning can no longer be an afterthought.
For more information, resources and legal guidance, visit The Florida Probate & Family Law Firm’s website.
Summary and Final Reflections
The rise of digital assets has introduced new layers of complexity to estate planning and probate practice in Florida. The Florida Fiduciary Access to Digital Assets Act provides a framework for addressing these assets, balancing the interests of fiduciaries and heirs with those of privacy and security. By clearly documenting their wishes and working with qualified professionals, individuals can protect both the financial and emotional value stored in their digital lives.
Estate planning now extends well beyond traditional assets. Individuals, families and legal representatives should review digital accounts and incorporate digital asset management into their comprehensive plans. Clear direction today can prevent unnecessary hardship tomorrow, safeguard valued memories and assets, and ensure that an individual’s wishes are respected long after their lifetime.
