In previous posts, we addressed digital assets and how difficult it might be for fiduciaries (personal representatives or trustees) of an estate to access the digital assets of a deceased loved one, specifically their Facebook account and assets such as email accounts. Although we had hopes that the Florida legislature would pass a bill on the subject early last year (Senate Bill 102), it unfortunately died on May 1. The Legislature, however, was determined to pass a bill on the subject, and we can now say that it has!
The bill passed on February 24, and the Governor signed it into law last month, on March 10. The law is set to take effect on July 1 of this year. But what does the law actually mean?
Prior to passage of the act, personal representatives and trustees could not receive any information about their loved one’s digital records. These digital records would include accounts such as iTunes, Facebook (and other social media sites), Gmail, or any other online record. Online providers were concerned that they would violate privacy laws by disclosing this information to persons who were not the actual account holder without consent. Some online providers, prior to passage of this law, had created tools for users to grant permissions to another individual in the event of their death, but not all providers had done so, and many users were unaware of this capability.
This new law provides consent or authorization by legal documentation (so have your Letters of Administration, Express Power of Attorney, or Acceptance of Trust handy and a certified copy of the death certificate). Note that if a will or trust are involved, the trust should state with explicit language consent to disclosure of the original grantor’s digital assets and electronic communications. Guardians are also capable of being considered fiduciaries under this law once a guardianship is established and letters are issued.
With this act, you will have to fill out the required paperwork of the online provider and demonstrate why you need access, but the process has now been made much simpler!