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Looking at Florida’s Fiduciary Access to Digital Assets Act, P.3

Last time, we began looking at the different categories of fiduciaries specified in the Florida Fiduciary Access to Digital Assets Act, and the different requirements the law establishes for fiduciaries to gain access to digital assets after the owner or account holder’s death. As we noted, the rules vary for gaining access to the content of communications, as opposed to noncontent communications and other digital assets.

Speaking generally, the law makes it harder for fiduciaries to gain access to the content of electronic communications, since it is assumed that the owner of these communications wants them to remain private unless they expressly authorize disclosure. Like the three previous categories of fiduciaries, this is also true for fiduciaries established by trust documents. 

Under the Fiduciary Access to Digital Assets Act, whether or not a trustee is the original user associated with digital assets affects access rights, specifically with regard to the content of communications. Trustees are allowed to access the content of electronic communications when the trustee is the original user, unless the trust prohibits access. In cases where the trustee is not the original user, access is allowed only when it is authorized by the trust document or by the user. For noncontent communications and other digital assets, whether or not the trustee is the original user doesn’t matter one way or another. Instead, access is generally allowed unless it is prohibited by the user, by the trust document or by a court. Digital assets owners should be aware of this when using trusts to manage digital assets planning.

Another important point about Florida law is that it requires fiduciaries to make written requests, whether in physical or electronic form, and to meet specific requirements to obtain disclosure of digital assets.

As with any aspect of estate planning, working with an experienced attorney ensures that one has the guidance necessary to engage in effective estate planning. Next time, we’ll look at several examples of how an attorney can help ensure access to digital assets after an owner’s death.  

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