New York Estate Planning & Elder Law Blog
COMMON PROBLEM
There is much talk lately of how to deal with email, facebook, twitter accounts, et cetera of people who pass away. For those of us who have friends or family who passed away and see their facebook account send a reminder to all of their friends on their birthday or some other event, it is nothing short of strange, even ery to see their former friend live into perpetuity in the digital realm. Many people use it as an opportunity to post memories and give a public shout out to the living that their friend or family is still alive in their heart. Others find the matter to be a painful memory.
Facebook instituted a policy whereby a legacy contact can delete your account or transition the account to a memorialized account, whereby your name will be changed to a remembered account (more properly a “remembering account“). Currently, New York does not allow an executor, or anyone else for that matter, to access the emails, online drives and various other digital accounts owned by a person after they pass away. If it was private while the person was alive, shouldn’t it be alive after they pass away? Yet, this is a rapidly evolving area of the law, with private corporations creating their own rules in the absence of legislative pronouncements to the contrary. In the 2012-2013 legislative session, Representative M. Kearns introduced a bill that would address the issue of access to such accounts by an executor.
The federal Stored Communications Act and Computer Fraud and Abuse Act prohibit access to such electronic accounts without permission or authorization from the owner of the account. Failure to obtain such authorization prior to accessing the account is a federal felony. It is noteworthy that these federal laws were written in 1986 and have not undergone any significant revision since. Of the 50 plus jurisdictions, only nine allow an executor to specifically access such accounts. Of those nine, only Delaware spells with any specificity the rights of the executor.
There is an additional complicating factor of the terms of service agreements that pretty much everyone glazes over when they sign up for services such as iTunes or Amazon. These agreements are expected to be complied with. For example, Yahoo requires a Court Order to close out an account if the owner is deceased. Given the variety of laws, with the federal criminal law implications that overlay it all, the Uniform Law Commission created the Uniform Fiduciary Access to Digital Assets Act to serve as a model for states to institute laws that allow for access with the imprimatur of the Probate Court.
Given the labyrinth like structure of rules enforced by service providers, local laws and federal criminal laws, it is best to spell out in your will, trust or other testamentary document who you entrust with what information, where it is located (in the event you do not tell anyone while alive or as back up) and your intentions for the various accounts. Furthermore, it is always best to speak with your attorney about theses matters.