Who do you want to have access to your digital footprint after you are gone? Have you ever thought about that? Would it be embarrassing/upsetting for a member of your family to see some of the photographs or read some of your emails or Facebook comments? Would it be shocking to realize you gambled so much online? Now that we are present online as much, if not more, as we are present in the real three-dimensional world around us, it is crucial to think about planning for digital assets and take care of them through correctly drafted estate plan.
Facebook has a default where it creates a memorial out of your account, and, in your settings, you can appoint a legacy contact or direct Facebook to delete the account, if that is your preference. Google, on the other hand, lets you choose trusted contacts who can download data from your Gmail, photos and more, if you become inactive for a certain period of time. The bottom line is that you do not want to leave this issue unaddressed because there is no uniformity of treatment across providers and jurisdictions.
In 2016, a version of the Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act was enacted in the New York. As such, Article 13-A of New York Estates, Powers and Trusts Law seeks to give guidance to the fiduciaries and the heirs of the New York estates as to what is accessible to them from the decedent’s “virtual world”.
The rules are complex and convoluted but we can guide you through them and help you plan for your digital assets!
First and foremost, if there is a user agreement with any of the online providers, where a Decedent prohibited the provider from disclosure of Decedent’s user information after death or the Decedent voluntarily included such prohibition in his or her account settings, such prohibition will be brought to the attention of the fiduciary by the provider upon receipt of the request from the fiduciary to access the account, and, if an objection is raised in court by the executor, the court will most likely respect it. So it is very important to pay attention to your online provider agreements and account settings.
Otherwise, in the absence of a court order directing otherwise, the custodian of the so-called electronic records of the Decedent has an obligation to disclose to the executor of the decedent’s estate “a catalogue of electronic communications sent or received by a deceased user (other than the content of the electronic communications)” upon receipt of the following from the personal representative: (a) a written request for such disclosure; (b) a copy of the deceased user’s death certificate; and (c) a certified copy of the letters appointing the fiduciary (or a small-estate certificate or court order) (EPTL § 13-A-3.2).
A custodian of electronic records may request: (a) the username for the deceased user’s account, among other identifying information; (b) “evidence linking the account to the Decedent”; (c) “an affidavit stating that disclosure of the Decedent’s digital assets is reasonably necessary for administration of the Decedent’s estate”; or (d) a judicial determination that the deceased user had an account with the custodian, or that “disclosure of the Decedent’s digital assets is reasonably necessary for administration of the estate”.
To summarize, disclosure of the non-content information is permitted, if not mandated, by Article 13-A of the EPTL and does not violate the federal privacy laws.
What about actual content beyond the catalogue? What about attachments? What about messages with images or videos?
Where a Decedent has consented to, or a court requests, “disclosure of the contents of electronic communications of the [Decedent],” the custodian of electronic records “shall disclose to the executor, administrator or personal representative of the estate of the [Decedent] the content of” the Decedent’s electronic communications, if the executor or trustee of the Decedent provides the following to the custodian: (a) a written request for such disclosure; (b) a copy of the [Decedent’s] death certificate; (c) a certified copy of the letters appointing the fiduciary…; and (d) “unless the [Decedent] provided direction using an online tool, a copy of the Decedent’s [Will], trust or other record evidencing the Decedent’s consent to disclosure of the content of [his or her] electronic communications” (EPTL § 13-A-3.1[a]-[d]).
A custodian of electronic records may request: (a) the username for the deceased user’s account; (b) “evidence linking the account to the Decedent”; or (c) a judicial determination that (i) the Decedent had a specific account with the custodian, (ii) “disclosure of the content of [Decedent’s] electronic communications . . . would not violate [the Federal Stored Communications Act, which Congress “enacted in 1986 as part of the Electronic Communications Privacy Act”,] or other applicable law”, (iii) “unless the [Decedent] provided direction using an online tool, the [Decedent] consented to disclosure of the content of electronic communications”; or (iv) “disclosure of the content of Decedent’s electronic communications] is reasonably necessary for administration of the [Decedent’s] estate” (EPTL § 13-A-3.1[e]).
In light of the foregoing, it appears that, absent a prohibition by the user, the executor or trustee should, in most cases, gain access to the non-content “catalogue” information from the accounts of the Decedent. Where the Decedent consents to the executor having access to the content of the Decedent’s communications, or a court orders that said content is necessary for the administration of the Decedent’s estate, the executor or trustee may be granted access to the content.
Call us and we can help you plan for the digital assets. If you are nominated a fiduciary of the Decedent, an executor, administrator or trustee, call us and we will help you petition the custodians and/or the court for access to the Decedent’s digital information.