New Law Governing Personal Representatives’ Access to Digital Data to Go Into Effect July 2016: Florida Fiduciary Access to Digital Assets Act

Florida Fiduciary Access to Digital Assets Act will affect how personal representatives access digital data in Florida. It was recently passed as Senate Bill No. 494 and will be going into effect July 1, 2016.

As stated on Florida’s Senate website, the new law accomplishes two things. First, it gives fiduciaries the legal authority to manage digital assets and electronic communications in the same way that they manage tangible assets and accounts. It distinguishes between when a fiduciary may access the content of digital assets and electronic communications and when the fiduciary may only access a catalog of the digital property. Second, it provides custodians of digital assets and electronic communications the legal authority they need to interact with the fiduciaries of their users while honoring the user’s privacy expectations for his or her personal communications.

Custodians will be granted immunity from liability for acts or omissions done in good faith compliance with the provisions of the new law. It will provide internet users with the ability to plan for the management and disposition of their digital assets, if they should die or become unable to manage their assets, by vesting fiduciaries with the authority to access, control, or copy digital assets and accounts. There will be an online tool available for directing fiduciary assets, in an agreement separate from the terms-of-service agreement, to provide directions for disclosure or nondisclosure of digital assets to a third person. In sum, the new law will make it easier for personal representatives in Florida to access digital data.

However, it is limited in its scope; it will apply only to fiduciaries who are already bound to act in compliance with their fiduciary duties and powers. It will not extend to family members or other people who seek access to digital assets unless they are also a fiduciary. Moreover, the ability of a fiduciary to access a digital asset does not entitle the fiduciary to own the asset or make transactions with the asset. The scope of the new law is also limited by the definition of “digital assets” which applies to electronic records and communications, but does not apply to the underlying asset or liability, unless the asset or liability is itself an electronic record.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.