Florida Statutes 740.05 – Fiduciary duty and authority
Current as of: 2023 | Check for updates
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(1) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
(a) The duty of care;
Terms Used In Florida Statutes 740.05
- Account: means an arrangement under a terms-of-service agreement in which the custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides goods or services to the user. See Florida Statutes 740.002
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- Court: means a circuit court of this state. See Florida Statutes 740.002
- Custodian: means a person that carries, maintains, processes, receives, or stores a digital asset of a user. See Florida Statutes 740.002
- Decedent: A deceased person.
- Designated recipient: means a person chosen by a user through an online tool to administer digital assets of the user. See Florida Statutes 740.002
- Digital asset: means an electronic record in which an individual has a right or interest. See Florida Statutes 740.002
- Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. See Florida Statutes 740.002
- Fiduciary: means an original, additional, or successor personal representative, guardian, agent, or trustee. See Florida Statutes 740.002
- Fiduciary: A trustee, executor, or administrator.
- Fraud: Intentional deception resulting in injury to another.
- Information: means data, text, images, videos, sounds, codes, computer programs, software, databases, or the like. See Florida Statutes 740.002
- Personal property: All property that is not real property.
- Principal: means an individual who grants authority to an agent in a power of attorney. See Florida Statutes 740.002
- Terms-of-service agreement: means an agreement that controls the relationship between a user and a custodian. See Florida Statutes 740.002
- User: means a person that has an account with a custodian. See Florida Statutes 740.002
- Ward: means an individual for whom a guardian has been appointed. See Florida Statutes 740.002
- writing: includes handwriting, printing, typewriting, and all other methods and means of forming letters and characters upon paper, stone, wood, or other materials. See Florida Statutes 1.01
(b) The duty of loyalty; and
(c) The duty of confidentiality.
(2) A fiduciary‘s or designated recipient‘s authority with respect to a digital asset of a user:
(a) Except as otherwise provided in s. 740.003, is subject to the applicable terms-of-service agreement;
(b) Is subject to other applicable law, including copyright law;
(c) In the case of a fiduciary, is limited by the scope of the fiduciary’s duties; and
(d) May not be used to impersonate the user.
(3) A fiduciary with authority over the tangible personal property of a decedent, ward, principal, or settlor has the right to access any digital asset in which the decedent, ward, principal, or settlor had or has a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
(4) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of the property of the decedent, ward, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including under chapter 815.
(5) A fiduciary with authority over the tangible personal property of a decedent, ward, principal, or settlor:
(a) Has the right to access the property and any digital asset stored in it; and
(b) Is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including under chapter 815.
(6) A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
(7) A fiduciary of a user may request a custodian to terminate the user’s account. A request for termination must be in writing, in paper or electronic form, and accompanied by:
(a) If the user is deceased, a certified copy of the death certificate of the user;
(b) A certified copy of the letters of administration; the order authorizing a curator or administrator ad litem; the order of summary administration issued pursuant to chapter 735; or the court order, power of attorney, or trust giving the fiduciary authority over the account; and
(c) If requested by the custodian:
1. A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;
2. Evidence linking the account to the user; or
3. A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subparagraph 1.