Access to Digital Records in Probate-How Does it Happen?

When you create an estate plan, you probably try to make sure that all of the assets you own are accounted for; that they are being left to whom you want to leave them to, or at least that they are being disposed of in the way that you like. You are creating a roadmap for your loved ones to follow when you are gone.

What About Electronic Records?

But one thing that people often leave out on this “roadmap,” are records and data that are stored electronically. This may include emails, digital records, digital data, or social media posts (or access to your social media accounts and information).

For many years, it was very difficult for loved ones to access this information; federal laws have strict penalties for tampering with another person’s computer, and the social media companies or other online hosting companies are very protective of people’s data—even if they have passed away.

More and more, our information is online. And if you have a will or a trust that requires access to those online records to carry out your wishes, a personal representative or trustee may have a problem doing what you want them to do, if those online record cant be accessed.

Getting Access to Electronic Data

The good news is that Florida has passed the Digital Assets Act, which now allows certain beneficiaries to access the online financial records and information of the deceased.

To get access to these digital records, the person seeking them must be a “fiduciary,” defined in the law as a personal representative or executor of the deceased’s estate, or, if the owner is alive. the legal guardian or someone given power under a valid power of attorney, of the person who owns the assets. Note that these categories do not automatically include family—even if you’re family you will have to be in one of these positions to access digital records.

Limitations on Access

Note that even though a fiduciary will have access to online digital assets, the Probate court will still follow the instructions left in any last will and testament, if in fact the will addresses digital assets.

All the law does is provide access to the information in the digital records—not the underlying asset. So, for example, a fiduciary may have the right to digital assets related to cryptocurrency, but that wouldn’t entitle him or her to the cryptocurrency itself.

Additionally, access to any digital information is limited to the information needed for the fiduciary to carry out a duty related to the estate. So, a fiduciary couldn’t get records just because he is curious. But he could get records if they were needed to inventory or administer an asset that is specifically part of the estate itself (ie., a will or trust or order of the probate court).

Call the West Palm Beach probate lawyers at The Law Offices of Larry E. Bray today for help with any probate court matter you may have.

Sources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0740/0740.html

floridabar.org/the-florida-bar-journal/access-to-digital-assets-floridas-new-law-for-fiduciaries-what-are-digital-assets-and-why-are-they-relevant/