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Digital estate planning in Massachusetts

In Ajemian v. Yahoo!, Inc., the Massachusetts Court of Appeals recently addressed the issue of access to online email accounts after a subscriber dies. The appeals court did not resolve the issue, but sent the case back to the Probate and Family Court to determine whether the Stored Communications Act, a federal law that regulates voluntary and compelled disclosures of "stored wire and electronic communications and transactional records" held by third-party internet service providers, prohibited the subscriber's email service provider from disclosing the contents of the subscriber's emails in the account.

After the subscriber's death in 2006, the subscriber's brother and sister requested access to the personal contacts in the account. They sought to retrieve the email addresses of the subscriber's friends in order to notify them of his death and memorial service. Subsequently, after their appointment as the co-administrators of the subscriber's estate, they also wanted access to the contents of the emails in the account to help them identify and locate the subscriber's assets and administer his estate. The email service initially agreed to release the information if the family produced a copy of the subscriber's birth and death certificates and other documents, but subsequently denied them access, claiming that the Stored Communications Act prohibited disclosure even to the legally appointed personal representatives of the estate. In 2007, the co-administrators of the subscriber's estate brought a declaratory judgment action, seeking a court ruling that the email messages in the subscriber's email account were the property of his estate.

Digital estate planning is becoming an important concern for fiduciaries and family members. After a person becomes incapacitated or dies, difficulties frequently arise in obtaining access to various digital assets and devices, such as computers, smartphones, internet accounts, photos, digital music, client lists, online bank accounts, bill-paying and other electronically stored information. The digital property may be difficult to locate, or it may be password protected, or there may be privacy laws potentially preventing access, such as the Stored Communications Act, or even federal and state criminal laws that penalize unauthorized access to electronic data.

Several states have enacted laws giving fiduciaries access to online accounts. The Massachusetts legislature is currently considering a proposal which would permit a personal representative to gain access to the contents of an email account of a decedent upon receipt by the email service provider of a notarized written request by the personal representative, accompanied by a copy of the death certificate and a certified copy of the letter of appointment as personal representative, or, alternatively, an order of the probate court that has jurisdiction over the estate of the subscriber.

Possible estate planning steps individuals may wish to consider in this regard include:

  • Inventorying digital assets, including a list of user names and passwords.
  • Specifying the desired disposition of each of the assets, for example instructions regarding whether accounts should be maintained, closed or destroyed.
  • Placing the list in a secure location, such as a safe deposit box, or with the personal representative, a trusted family member, or the estate planning attorney, or possibly even providing a list of user names to one person and passwords to another.
  • Maintaining security of the information, particularly if financial accounts are involved, is crucial.

Even these simple steps may not be ideal, given the security risks and the need to update passwords frequently. Individuals should contact a digitally-savvy estate planning attorney for assistance in incorporating this important information into the overall estate plan.

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