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Estate Planning with Digital Assets: Should I Give My Passwords to My Personal Representative (PR)?

Much of our access to information is protected by passwords. In the context of estate planning and probate, passwords can lead to expensive complications and third-party subpoenas. For this reason, an important aspect of modern estate planning is planning in such a way that fiduciaries will be able to access the financial and other electronic documents belonging to a decedent.

Florida law gives personal representatives and trustees certain powers with regard to accessing certain digital assets, but such powers are useless unless the fiduciary knows the passwords to access these accounts. Your passwords should not be in your will, as a will may become may be a public document, but you may want to consider maintaining a list, including log-in and password information, for all of your digital assets (including, for example: email accounts; electronic documents; software; internet sites; online user accounts; social media accounts; and electronic content, such as music or photography collections). A viable alternative may be programs or applications that safely store passwords. Some internet browsers have built-in password storage. If you use such programs, you must ensure that your fiduciaries know the master password that will allow them to see the other passwords.

Understanding Fiduciary Access to Digital Assets Under Florida Fiduciary Access to Digital Assets Act

Social networking, e-mail, and digital platforms are here to stay; unfortunately, we are not. Internet users must plan for the management and disposition of their assets in similar ways that they make plans for tangible property.

Florida statutes define a digital asset as “an electronic record in which an individual has a right or interest.” When a user with digital assets passes away or becomes incapacitated, a representative may want access to these digital assets to collect financial records of the decedent, to prevent identity theft, or even for sentimental reasons. There are various state and federal privacy laws, however, that may prevent one from acquiring this information. Amongst these laws is the Florida Fiduciary Access to Digital Assets Act. The Act applies to a fiduciary acting under a will, trust, or power of attorney executed before, on, or after July 1, 2016 Fla. Stat. § 740.08. Chapter 740 generally prevents access to electronic information and assets without specific authorization from a user, even if a general grant of authority has been given to a fiduciary. As such, if the user desires that the agent have access to electronically stored information digital information or digital assets, they must curate the operating document to include a special authorization to that effect.