Gideon Rothschild, Esq., partner, now retired, with the New York City law firm Moses & Singer LLP. He is a past chair of the Real Property Trust & Estate Law Section of the American Bar Association. MosesSinger.com/gideon-rothschild
I was recently appointed as the administrator of the estate of a young man who had no will. The task at hand generally entails locating all the decedent’s assets and identifying and paying any creditors. However, this decedent had opted to receive all his statements and bills electronically. Since he did not leave a record of his passwords, I could not access his laptop nor any of his emails, statements, etc. And even if he had had a will, the same predicament might have obtained—because even the majority of folks who have wills have not considered who they wish to authorize to have access to their digital assets.
If you have any of your bills, credit accounts, investment accounts, or other financial matters handled online rather than the old-fashioned way with paper mail, you need to provide for digital access after you pass away. Otherwise, you could be creating time- and money-sapping headaches for your estate and your heirs.
It isn’t only individuals who are behind the curve on the need to account for digital assets in their estate planning. The law itself is behind. It’s true that in 2015, the Uniform Law Commission drafted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which has now been enacted in all but a handful of states. Essentially, the Act provides fiduciaries, such as executors and agents under a power of attorney, with the legal authority to access and manage digital assets such as emails, photos, social media accounts and other internet accounts requiring password as well as digital assets such as websites, and crypto currency. The Act requires custodians, such as Google, to disclose to a personal representative of the estate a “catalogue of electronic communications sent or received by the deceased user”—not the contents of the communications, but rather, for example, the email addresses of the parties communicating with the decedent—unless the decedent prohibited such disclosure in his online contract or will or a court directs otherwise.
But that sort of access may still leave your estate’s executor short of being able to efficiently, or even accurately, carry out your wishes.
In states that have not passed the Act, companies like Facebook and Google dictate who can access one’s account based on the online contract entered into by the user. Yahoo, for one, has been known to terminate an account upon learning of a user’s death and forbidding access to it thereafter. More than one court has had to address the issue of access and the enforceability of such contracts, the main issue being the right to privacy that the deceased person may have intended to have protected.
Example: New York State has enacted RUFADAA. But in a recent New York Surrogate’s Court decision, an executor was denied access to the contents of the decedent’s Google account, with the Court stating that it was “concerned that unfettered access to a decedent’s digital assets may result in an unanticipated intrusion into the personal affairs of the decedent or disclosure of sensitive or confidential data, for example, information unrelated to his business or corporation.” The Court permitted Google to disclose only the contact information stored in the account.
So, what should a person do to ensure that the information stored on his or her laptop is available to the appropriate person after his or her incapacity or death? The first task is to include a provision in your will, trust and power of attorney paperwork authorizing the person designated to access the digital assets to which you wish to allow access. This should not include any specific account information, such as account numbers, user names or passwords as the document may become a public record.
Separate instructions should be given to the appropriate fiduciary that include the more-specific information mentioned above, and these instructions should be updated from time to time with current passwords. Ideally, if you use a password manager application, only one password need be provided to access all the account information.
With respect to my decedent who I mentioned at the top of this post, I have tried to contact Microsoft, as he used a hotmail account, to obtain the digital data I need to execute his estate, but to date I have had little success. In the end, I may have to resort to a court proceeding, at a significant expense to the estate, to compel Microsoft to provide this data. This could have been avoided by following the steps outlined above.
For more information, check out Gideon Rothschild’s website.