By:  Kyle M. Johnson

The Florida legislature recently passed legislation designed to enable individuals to effectively plan for the management of their digital assets in the event of incapacity or death.  The Florida Fiduciary Access to Digital Assets Act, which went into effect on July 1, 2016, has two main purposes: (1) vest fiduciaries (e.g., personal representatives, trustees, and attorneys-in-fact) with the authority to access, control, or copy digital assets and accounts and (2) provide custodians of digital assets and electronic communications the legal authority needed to interact with fiduciaries of their users while granting custodians immunity from liability for acts or omissions performed in good faith compliance with the Act.

A quick review of some vocabulary may help. A “digital asset” is an electronic record in which an individual (the “user”) has a right or interest. § 740.002(9), Fla. Stat. This term does not include an underlying asset or liability unless the asset or liability is itself an electronic record. Id.  A “custodian” is the entity that carries, maintains, processes, receives, or stores a digital asset of a user (e.g., Facebook, Google, LinkedIn, etc.).  § 740.002(7), Fla. Stat.  An “online tool” is an electronic service provided by a custodian which allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person (e.g., Facebook’s Legacy Contact or Google’s Inactive Account Manager). § 740.002(16), Fla. Stat.

The Act divides digital assets into two categories and applies different default rules for the disclosure of each type of asset. Generally, a user must expressly authorize a fiduciary (in a will, trust, power of attorney, online tool, or other record) to be […]

By:  John J. Bennett

Have you accepted the honor and privilege of acting as trustee for a family or company trust?  If so, you are likely aware of the many duties attendant to your role as trustee and the powers which enable you to carry out those duties.  Specifically, as a trustee you are the protector of the trust assets and entrusted to carry out the intent of the settlor, whatever that may be.  As such, you will likely be called upon to carry out tasks which are outside the scope of your own knowledge and expertise, requiring you to hire expert professionals – including attorneys.  Generally, a trustee is empowered by Florida law (or directly by the trust instrument) to use trust assets to pay the costs and fees generated by hiring attorneys who render services to the trustee on behalf of the trust.  Questions arise, however, when that attorney has been hired to defend against allegations brought against the trustee by beneficiaries of the trust.  Naturally, a conflict presents itself when a beneficiary has alleged wrongdoing against a trustee but which such trustee is empowered to use some portion of that beneficiaries’ interest in the trust assets to defend against the beneficiaries’ allegations.

Florida law, however, has long recognized this conflict and has attempted to reconcile the trustee’s inherent power to utilize trust assets with beneficiaries’ right to be protected against malicious or negligent trustees.  Along the way, Florida enacted Florida Statutes, § 736.0802(10), controlling a trustee’s ability to use trust assets to pay the attorney’s fees incurred by the trustee.  Since 2008, § 736.0802(10), entitled Duty of Loyalty, has provided guidance regarding a trustee’s payment of attorney’s fees and costs associated with legal […]