Digital Assets in Estate Planning 2016 Florida Update

Florida has become the latest state in a nationwide trend by state legislatures to address the disclosure of digital assets from service providers to estates. Pursuant to the Florida Fiduciary Access to Digital Assets Act (“Act”), online service providers are deemed to be the custodians of their respective users’ “digital assets.” The Act defines “digital assets” as any “electronic record in which an individual has a right or interest” but the term does not include any “underlying asset or liability unless the asset or liability is itself an electronic record.”

Beginning on July 1, 2016, online service providers conducting business in Florida were required to release a decedent’s digital assets to the decedent’s personal representative upon receipt of:

(1) A written request for disclosure which is in physical or electronic form;

(2) A certified copy of the death certificate of the user;

(3) A certified copy of the letters of administration, the order authorizing a curator or administrator ad litem, the order of summary administration issued pursuant to chapter 735, or other court order; and

(4) If requested by the custodian:

a. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account; Evidence linking the account to the user;

b. An affidavit stating that disclosure of the user’s digital assets is reasonably necessary for the administration of the estate; or

c. An order of the court finding that:

i. The user had a specific account with the custodian, identifiable by information specified in paragraph (a); or

ii. Disclosure of the user’s digital assets is reasonably necessary for the administration of the estate.

The Act expressly invalidates any contradictory terms of service issued by online service providers. Online service providers which comply with valid digital asset requests are granted immunity from liability incident to such disclosure.

In practice, the Act provides excellent guidance regarding the administration of a decedent’s social media and e-mail accounts. However, the Act provides little guidance regarding digital assets which in itself have value, such as social media accounts with advertising appeal (accounts with the names of celebrities, goods, services, etc.). Issues also arise with regard to digital currency like Bitcoin, which are electronic records within the definition of digital assets, and as such, may be disclosed by online service providers without the typical process expected of financial institutions during the probate process. As such, despite the Act’s intent to simplify access to digital assets, dedicated estate planning is still strongly recommended in properly devising digital assets that possess tangible value.

Thumbnail image for SALAD FU HEAD SHOTS.jpg

Michael Salad is an attorney in Cooper Levenson’s Business & Tax and Cyber Risk Management practice groups. He concentrates his practice on estate planning, business transactions, mergers and acquisitions, tax matters and cyber risk management. Michael holds an LL.M. in Estate Planning and Elder Law. Michael is licensed to practice law in New Jersey, Florida and the District of Columbia. Michael may be reached at 609.572.7616 or via e-mail at msalad@cooperlevenson.com.

Peter Fu is an attorney in Cooper Levenson’s Business & Tax and Cyber Risk Management practice groups. He concentrates his practice on sales and use tax, enterprise risk management, and commercial transactions. Peter is licensed to practice law in New Jersey and Florida. Peter may be reached at 609.572.7556 or via e-mail at pfu@cooperlevenson.com.

Date Published: February 7, 2017


Written by: Michael Salad

Leave a Reply