In the first week of 2013, The Wall Street Journal asked readers to consider the fate of their digital assets. The subject is far from new to our blog, and the issues that arise in planning for digital assets remain unchanged in this new year.
Planning for digital assets is complicated by conflicting laws. Laws relating to the administration of decedents’ estates generally operate to provide personal representatives with the ability to establish control over all of a decedent’s assets. In contrast are laws relating to privacy, notably the Electronic Communications Privacy Act of 1986, which among others, protects from disclosure electronically stored information. This Act seems to be the law digital asset providers have in mind when establishing the policies and agreements that bind their users, ultimately causing problems when loved ones seek to access a deceased’s account information.
The Journal indicated that a separate will for social media does not necessarily solve the conflict among laws, and we agree (more on that here). The Journal emphasized that in order to properly handle a loved one’s digital assets, those surviving must pay careful attention to the agreements or licenses that govern such accounts’ use, access, and control. In other words, as we explained in a post last month, it is important to “know the framework within which you are working” when planning for and administering these digital estates.
So what do these frameworks look like? Last September, we discussed some of iTunes’ policies; here are additional policies to consider:
Facebook: Will not grant access to a deceased’s account, but may grant a request to completely remove an account. Alternatively, an account may be “memorialized”
Gmail: Though rarely granted, may provide account content to the deceased’s authorized representative, upon for example, court order
Twitter: Will not provide login information but will work with individuals to have a deceased’s account deactivated
Yahoo! An account may be closed and deleted, but generally, accounts and associated content are not transferable and login information will not be provided. The result is different, however, if a deceased’s estate plan includes consent to transfer and associated account information.
Microsoft: Will not provide login information to Live Hotmail or MSN Hotmail accounts, but will release email content and attachments via DVD to a deceased or incapacitated person’s next of kin. In order for such a release to be processed, the requester will need to know specific information about the account, like approximately when the account was created and last accessed.
Keep in mind that the aforementioned policies may be affected by court orders and/or local laws, the latter of which may change in upcoming years. In fact, the Uniform Law Commission is currently drafting legislation on fiduciary access to digital assets; once finalized, the Commission’s recommendations may be adopted by, or influence state lawmakers. In the meantime, stay tuned! And for more information on incorporating your digital assets into your estate plan, call us at (301) 468-3220 or email us at firstname.lastname@example.org.
– Gary Altman, Esq. and Coryn Rosenstock