New Florida Law Allows You to Plan for Digital Assets

New Florida Law Allows You to Plan for Digital Assets

The internet runs our lives. We get information, manage our finances, sign contracts, pay bills, and share our lives online. Technology has truly changed the way we live.

Last year, we briefly discussed whether you need an estate plan for your digital assets. The conclusion was yes, you should have some kind of plan for how your digital assets should be handled after your death. And we offered tips to get you started on handling and preparing your digital assets.

But as of this month, Governor Rick Scott has signed a bill into law concerning digital assets that will take effect on July 1, 2016.

The bill – known as the Florida Fiduciary Access to Digital Assets Act – allows a person to designate someone to have access and control of their digital assets.

But what does the term “digital assets” even mean? And how does this new law work?

Digital Assets: Defined

According to the new law, a digital asset is “an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.”

So what would qualify as a digital asset?

  • Photographs and videos stored online, on your computer, or other devices
  • Word documents, spreadsheets, and other types of files
  • E-mails
  • Personal websites and blogs
  • Virtual medical, financial, and work information
  • Social media accounts
  • Other virtual online accounts
  • And anything really that exists online, in the cloud, or on one of your personal devices

People often overlook their digital assets when estate planning because most are intangible and may not have a monetary value. But they might have some other kind of value, and your digital assets will need to be distributed or managed upon your death.

Protecting Your Digital Assets in Probate

How Does the New Law Work?

Under this new law, a user (someone who has an account with a custodian) can use an online tool to direct the custodian (the site where the user has an account) to disclose some or all of the user’s digital assets, including the content of electronic communications.

Let’s use Google as an example. Like many of us, you have a Google account where you use Gmail and Google Drive for online storage. You want your spouse to be able to manage your Google digital assets in the event of your death, and you designate your spouse using an online tool. Because of this, your spouse will be able to have access to your Google account upon your death.

Seems simple enough, but there are a few things you should be aware of with this new law:

  • If the online tool allows you to modify or delete a direction, it will override any different direction you have in a will, trust, power of attorney, or other record. So if you designate your spouse online but your will designates your brother, the online tool naming your spouse overrides the will naming your brother.
  • If you don’t use an online tool or one isn’t available, you can designate someone to manage your digital assets in a will, trust, power of attorney, or other record.
  • The custodian can grant full or partial access.
  • The custodian has to provide all digital assets a user could have accessed if the user was still alive.
  • The custodian does not have to disclose a deleted digital asset.

With this new law, digital asset estate planning has finally become legitimate, and you can rest easy knowing all of your assets will be taken care of.


About the Author: 

Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.