New Law Outlines Access to Online Accounts of the Deceased
Until relatively recently, important documents, like wills and trusts, were commonly kept in home safes or bank safety deposit boxes to protect the information from theft, destruction or alteration. A person might have also opted to keep duplicate copies in different locations as a failsafe. However, as technology and people become more and more tethered to computers, and the Internet specifically, most documents are now exclusively created and stored in a digital format. While this transition makes it easier and cheaper to draft complex documents, it can also present problems if a person becomes incapacitated or dies, and no one has the log-in information needed to access financial accounts, insurance policies and estate planning papers. Florida legislators realized gaining access to online accounts owned by someone recently deceased is becoming real problem and passed legislation, effective July 1, 2016, that will permit Florida residents to designate an online custodian who is legally recognized as holding authority over the deceased’s passwords and access to online accounts.
Designating a Fiduciary
This new law, entitled the Florida Fiduciary Access to Digital Assets Act, allows anyone who uses and maintains online accounts that hold digital assets or through which services or goods are provided to control the who, when and how access to this information after death will be handled. A user of these online accounts has two different options to designate access. First, some companies who manage online accounts provide a tool to list the name of someone entitled to access following death and the extent of the access the user wishes to grant to the designee. Further, if the there is an option to modify or delete the directions provided by the user, any changes made by the user will override contrary directions listed in a will, trust, power of attorney or similar document. Note that a user is not required to use an online directive just because it is available and may opt to use the second method described below.
Second, a person now has the ability to name a fiduciary for online accounts in a will, trust, power of attorney or similar document. The user may also prohibit access to certain persons and direct which digital assets the fiduciary can access and how much information the company that holds the online account should disclose to a fiduciary. In addition, this designation may be modified or eliminated by the user, federal law or by a terms-of-service agreement if the user did not designate someone using one of the above methods.
Disclosure of Digital Information
Disclosure of a deceased user’s electronic communications requires specific authorization from the deceased or a court order stating such disclosure is demanded. Otherwise, custodians are only required to provide a catalog of electronic communications sent and received and the digital assets. In either case, the personal representative for the deceased must present the following documentation to the custodian before the information will be released:
- a written request for disclosure;
- a certified copy of the user’s death certificate;
- a certified copy of the letters of administration (authorization to serve as personal representative from probate courts); and
- the user’s written consent to the disclosure of the content of electronic communications, if applicable, as contained in a will, trust or other similar document. This assumes the user did not use an online tool to provide consent.
In addition, the custodian also has the right to ask the personal representative for a unique account identifier, evidence linking the account to the user, and an affidavit saying the information is needed to administer the deceased’s estate.
Contact an Estate Plan Attorney
Given the large role digital information plays in the world now, it is important to consider and plan for how you want it to be used after death. The Tampa law firm of Bubley & Bubley, P.A. can advise on the most effective estate plan for your specific situation. Contact us to schedule an appointment.