You have a digital estate if you send emails, participate in Facebook and other social networking sites, do online financial transactions, play internet games, or store photos and other important files in the “cloud.”
What happens to your digital estate if you become incapacitated or die?
There are both federal and state laws that come into play, along with the agreements you “signed” when you created your digital assets. When you set up your various internet accounts, do you remember checking a box on each website concerning the “terms of service?”
Unless you acknowledged having read and agreed to each vendor’s terms of service, you would not have been able to create those ‘online accounts.’ Who really reads all of that legal gobbledygook fine print? If you do, you are exceptional. The rest of us are stuck with agreements we never read and probably would not understand if we did.
The typical “terms of service agreement” says that you are the only person who can access your digital assets. If you are incapacitated or dead, that could be tricky. If somebody tries to get information about your digital assets pretending to be you, he or she is probably violating federal law that defines such activity as “fraud.”
This is true even if the person trying to access your accounts is your personal representative who needs information about your digital assets to do his or her job. The applicable federal law does not take noble motives into account.
Most of the 50 states now have laws on the books that give someone the authority to access your digital asset while acting under a properly drafted durable power of attorney, or under court appointment as your conservator or personal representative. Those laws have gone through a painful evolution. The various internet providers, the public and the government have grappled with issues of privacy and personal freedom versus the need for your fiduciaries, and sometimes, the government, to look into your digital estate.
The state laws differentiate between the content of what the law calls your “electronic communications” and the catalog of your electronic communications. Under the law, accessing a list of your communications is much easier than accessing what you said in those communications, but there are hurdles to be addressed either way.
Generally, your fiduciaries can get the catalog of your electronic communications even if you did not expressly permit them to do so in your terms of service agreements. When it comes to email, the catalog includes the name of each sender, the email address of each sender, and the date and time each message was sent. It does not, however, include the subject lines or contents of your email messages.
Even if you do consent to your fiduciaries being able to access the content of your digital assets, most internet vendors will require not only proof of your death or incapacity, but in many cases, a court order.
So stay tuned as the law continues to evolve, and (we hope) order emerges from the chaos.
SCOTT MAKUAKANE, Counselor at Law
Focusing exclusively on estate planning and trust law.