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Patricia Annino
Patricia Annino
The Estate Planning Perils of the Digital Era
Passwords into eternity.

October 20, 2011
by Patricia Annino, JD, LLM

What do Facebook, Twitter, eHarmony, and your blog have in common? Life after death … or not?

And what about that personal e-mail account and all the e-mails that should have been for your eyes only and for those of the recipient? Life after death … or not?

What about the personal assets stored on your computer including those Flickr and Shutterfly photos? Who can access them?

After hundreds of years of dealing with the disposition of bricks and mortar, the new asset is the social-media asset. Who owns it, who can access it and what to do about it are new challenges.

Case law is evolving. Many attorneys and accountants are now asking the client as part of the data-gathering process to list their social media assets and passwords and to keep them in a safe place (which is obviously not on the password protected computer). The problem, of course, is that passwords change, and those lists are not always updated.

Social Media Sites Policies

There is at least one case dealing with post-death access to an e-mail account: The father of Justin Ellsworth, a soldier killed in Iraq, wanted access to his son’s Yahoo account and requested that access from Yahoo. Yahoo declined the request. The rules for each online service differ and are made available to the subscriber when they register for the service initially. Yahoo’s policy is that the e-mail account is nontransferable and that any rights to the Yahoo account terminate at death. The website makes it clear that upon receipt of a copy of a death certificate, the account may be terminated and all contents therein permanently deleted. Justin Ellsworth’s father petitioned the court, and the Judge ordered Yahoo to turn over the e-mails to his father. The Judge did not order Yahoo to provide the father with access to the account.

The rules of other e-mail account providers differ from those of Yahoo. In the help section on the Gmail website, there is the potential to release e-mails to the personal representative of an individual over the age of 18 or to the parents of a younger person. It also addresses accessing the e-mails of a deceased person.

Facebook allows you to “Report a Deceased Person’s Profile.” When death is proved to Facebook, the decedent’s Facebook page can be “memorialized” so that only confirmed friends will have the continuing ability to access the profile.

States Weigh In

Some states have now enacted laws to address these digital issues:

  • Connecticut law requires e-mail providers to turn over copies of all e-mails sent and received to the decedent’s administrator or executor, but it does not address other types of social media.
  • Indiana statue requires that any person who electronically stores the documents or information of any other person must provide to the personal representative of the estate of the deceased person who was domiciled in Indiana at the time of death access to or copies of any information or documents of the deceased person stored electronically by the custodian.
  • Oklahoma statute provides that the executor or administrator of an estate shall have the power, where otherwise authorized, to take control of, conduct, continue or terminate any accounts of a deceased person on any social networking website, any micro-blogging or short message service (SMS) website or any e-mail service website.

As this law evolves, and more states enact legislation, the question becomes how do we plan for this access (or non-access) to occur in an estate? Not everyone wants someone else to have access to their private e-mails. In my 30 years of practice, I have seen quite a few surviving spouses surprised by handwritten letters found in desk drawers. One can only imagine what some e-mail accounts hold.

Conclusion

The term “digital executor” is not yet a legal term, and probate courts do not have the authority to appoint a digital executor. However, since the law will certainly evolve, it may be wise to nominate a digital executor in a will to handle the social media assets. It may also be wise to add powers to the durable power of attorney, will and any revocable trust that states the individual’s intent concerning social-media assets and who should be designated to handle the access of those assets. Having clear direction from the individual who is unable to make those decisions is — as with every estate-planning decision — important. It provides comfort that the fiduciary is carrying out what the individual wanted and not guessing later as to what should have been done. That type of language in a decedent’s estate-planning documents will be given significant weight by the Judge in making a decision as to whether or not access should be allowed.

There are also commercial websites, such as entrusted.com and legacylocker.com, that provide the service of storing all accounts and passwords, which allow access to those who your clients designate. Should that be of interest, such providers should be explored.

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Patricia M. Annino, JD, LLM, is chair of the Estate Planning Practice Group at Prince, Lobel Tye LLP. She is a Fellow of the American College of Trust and Estates Counsel.