Digital Estate Planning in Miami, Florida

Almost everyone today has a digital footprint that includes email accounts, social media profiles, cloud storage, online banking, cryptocurrency, subscription services, and more. When someone dies or becomes incapacitated, these digital assets can be difficult or impossible for family members to access without proper planning. Florida addressed this issue by adopting the Florida Fiduciary Access to Digital Assets Act (F.S. Chapter 740), which provides a legal framework for fiduciaries to manage digital assets. Despite this law, families still face significant practical challenges unless the account holder planned ahead.

At the Law Offices of Albert Goodwin, PA, we help clients in Miami-Dade County and throughout Florida incorporate digital asset planning into their comprehensive estate plans.

What Are Digital Assets?

Digital assets are electronic records in which a person has a right or interest. Under F.S. § 740.02, the term encompasses a broad range of items, including:

• Email accounts: Gmail, Outlook, Yahoo, and other email services
• Social media accounts: Facebook, Instagram, Twitter/X, LinkedIn, TikTok, and others
• Cloud storage: Google Drive, Dropbox, iCloud, OneDrive
• Online financial accounts: Online banking, payment services (PayPal, Venmo, Zelle), investment platforms
• Cryptocurrency: Bitcoin, Ethereum, and other digital currencies held in exchanges or digital wallets
• Domain names and websites: Registered domain names, hosted websites, blogs
• Digital media: Purchased music, movies, e-books, and apps
• Online businesses: E-commerce stores, affiliate marketing accounts, advertising revenue accounts
• Loyalty programs: Airline miles, hotel points, credit card rewards
• Gaming accounts: Online gaming accounts with virtual currency or items of value
• Intellectual property stored digitally: Photographs, manuscripts, designs, software code

The distinction between a digital asset and the underlying content is important under the law. A fiduciary may be granted access to a catalogue of electronic communications (essentially a list of senders, recipients, and dates) without necessarily having the right to read the content of those communications, unless the account holder specifically authorized content access.

Florida's Fiduciary Access to Digital Assets Act

Florida's adoption of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in F.S. Chapter 740 establishes a three-tiered priority system that determines who can access a person's digital assets and what level of access they receive:

Priority 1: The User's Online Tool Directions

If the account holder used an online tool provided by the platform to designate what should happen to their account after death or incapacity, that designation takes the highest priority. Examples include Facebook's Legacy Contact feature, Google's Inactive Account Manager, and Apple's Digital Legacy program. These tools allow the user to specify whether an account should be deleted, memorialized, or transferred to a designated person.

Priority 2: The User's Estate Planning Documents

If the user did not use an online tool, the next level of authority comes from the user's will, trust, power of attorney, or other estate planning documents. If these documents include specific provisions about digital assets, those provisions control. This is where proactive planning makes the greatest difference. By including digital asset provisions in your trust or will, you give your fiduciary clear legal authority to manage your digital accounts.

Priority 3: The Platform's Terms of Service

If the user did not use an online tool and did not address digital assets in their estate planning documents, the platform's terms of service control. Most terms of service are restrictive and may prohibit anyone other than the account holder from accessing the account. This is the default outcome for people who do not plan, and it often leaves families unable to access important accounts.

Planning for Specific Types of Digital Assets

Email Accounts

Email accounts often contain critical information needed to administer an estate, including financial statements, correspondence with advisors, subscription confirmations, and contact information. Without access to the decedent's email, a personal representative may struggle to identify all assets and obligations.

To plan for email access:

• Use the email provider's built-in legacy tools (Google Inactive Account Manager, for example)
• Include a specific grant of authority in your estate planning documents authorizing your fiduciary to access email content
• Store your email login credentials in a secure password manager and provide access instructions to your fiduciary

Social Media Accounts

Social media accounts present both sentimental and practical concerns. Family members may want to memorialize a loved one's profile, download photos and memories, or close accounts to prevent misuse. Each platform has its own policies:

• Facebook: Allows users to designate a Legacy Contact who can manage a memorialized account or request account deletion after death
• Instagram: Can be memorialized upon request by a family member, but content access is limited
• Twitter/X: Allows deactivation by verified family members or estate representatives
• LinkedIn: Can be removed upon request by a verified family member with a death certificate

Including social media account directions in your estate planning documents provides your fiduciary with additional legal authority beyond what the platform's own tools offer.

Cryptocurrency and Digital Wallets

Cryptocurrency presents unique estate planning challenges because access depends entirely on possessing the private keys or seed phrases. Unlike a bank account that can be accessed through legal proceedings, a cryptocurrency wallet that is secured by a private key will be permanently inaccessible if that key is lost.

Critical steps for cryptocurrency planning include:

• Document all holdings: Maintain a current list of every cryptocurrency holding, including the platform or wallet where it is stored, the type and amount of currency, and how to access it
• Secure private keys and seed phrases: Store these in a highly secure location, such as a fireproof safe, a safety deposit box, or a secure hardware device. Some estate planners recommend splitting the seed phrase and storing portions in separate secure locations
• Provide access instructions: Your fiduciary must know that the cryptocurrency exists, where it is held, and how to access it. Without this information, the assets may be permanently lost
• Consider the tax implications: Cryptocurrency is treated as property for federal tax purposes. Beneficiaries may receive a step-up in basis at the owner's death, which can result in significant tax savings
• Exchange accounts vs. self-custody: Cryptocurrency held on an exchange (such as Coinbase) may be accessible through the exchange's estate procedures. Self-custodied cryptocurrency in a hardware wallet or software wallet requires the private key and cannot be recovered through any institution

Online Financial Accounts

Online banking, investment platforms, and payment services such as PayPal and Venmo may hold significant funds. While these accounts are ultimately accessible through the probate or trust administration process (since the underlying financial institution must comply with legal orders), having login credentials and account information readily available speeds up the process considerably.

Digital Media and Subscriptions

Purchased digital media (music, movies, e-books) is typically licensed rather than owned, meaning the license may not be transferable at death. Subscription services (streaming, software, cloud storage) will continue to charge the decedent's credit card or bank account until someone cancels them. Your digital asset plan should include:

• A list of all active subscriptions and how to cancel them
• Instructions for any digital media libraries that have sentimental value
• Authority for your fiduciary to cancel subscriptions and close accounts

Creating Your Digital Asset Plan

A comprehensive digital asset plan includes the following components:

1. Create a Digital Asset Inventory

List every online account and digital asset you own. For each entry, record the platform name, your username, and general information about the account's purpose and value. Update this inventory at least annually.

2. Use a Secure Password Manager

Store your login credentials in a reputable password manager (such as 1Password, LastPass, or Bitwarden). Provide your fiduciary with instructions for accessing the password manager, including the master password or recovery key. Store these instructions in a secure physical location, not digitally.

3. Configure Platform-Specific Tools

Set up legacy and inactive account features on every platform that offers them. These platform-specific designations take the highest priority under Florida law and can streamline access for your designated person.

4. Include Digital Asset Provisions in Your Estate Plan

Work with your attorney to include specific digital asset language in your will, trust, and power of attorney. These provisions should:

• Define digital assets broadly
• Grant your fiduciary authority to access, manage, and distribute digital assets
• Authorize access to the content of electronic communications (not just the catalogue)
• Designate a specific person to manage digital assets if you want someone different from your general personal representative or trustee
• Provide instructions for specific accounts (memorialize, delete, transfer)

5. Communicate with Your Fiduciary

Make sure the person who will manage your digital assets knows about your digital asset plan, where to find the inventory and password manager instructions, and what your general wishes are. This conversation is as important as the documents themselves.

Common Mistakes in Digital Estate Planning

• Not planning at all. The most common mistake is simply not addressing digital assets. Without planning, the terms of service default applies, and family members may be locked out of important accounts.
• Sharing passwords informally. Writing passwords on a sticky note or sharing them verbally is insecure and unreliable. Use a structured, secure method.
• Forgetting to update. Digital accounts change constantly. New accounts are created, old ones are closed, and passwords are updated. Your digital asset inventory must be maintained as a living document.
• Ignoring cryptocurrency. If you hold cryptocurrency and do not leave access instructions, those assets will likely be permanently lost. There is no bank or institution that can recover self-custodied cryptocurrency without the private key.
• Assuming your family can figure it out. Even tech-savvy family members cannot access accounts protected by strong passwords, two-factor authentication, and restrictive terms of service without proper planning.

Contact the Law Offices of Albert Goodwin

If you want to ensure your digital assets are protected and accessible to your loved ones, the Law Offices of Albert Goodwin, PA can help you build a digital asset plan that integrates with your overall estate plan. We assist clients in Miami-Dade County and throughout Florida with all aspects of estate planning, including digital assets, trusts, wills, and probate.

Call us at 786-522-1411 or email [email protected] to schedule a consultation. Our office is located at 121 Alhambra Plz #1000, Coral Gables, FL 33134.