What Happens to our Digital Footprint when we Die?
Our lives are increasingly digital. Many of us have gone largely paperless with bank and other financial statements. Bills of all kinds arrive by email and are paid online. Our photos, music, movies, and documents sit on phones and computers and are backed up to the cloud. We spend substantial portions of our days on Facebook, using Gmail, listening to Spotify, networking through LinkedIn, scrolling through Twitter, buying on Amazon, and on and on. This can become a huge problem when we die.
What’s the problem?
Well, for starters, it’s a federal crime to get into someone’s computer or web-based account without permission, even if they’re dead. The Computer Fraud and Abuse Actessentially makes it illegal to access any computer (or cell phone for that matter) which is connected to the Internet… so basically any computer. The Stored Communications Act effectively makes it illegal to access someone’s emails without their permission. It also makes it illegal for a service provider to turn over the contents of someone’s messages to anyone other than the intended recipient.
Well, that means when someone passes away, their spouse or parent or child or friend can’t legally get into their emails, computer, or phone without having the authority to do so.
Why should we care and what do we do about it?
When someone dies, whoever is put in charge of their estate has a lot of responsibility, focused primarily on collecting their stuff and passing it to the right people. This means they first need to know where everything is. Now, with physical assets that tends to be pretty straightforward. With other assets, it’s anything but. The easiest and most logical way to learn what investment accounts are owned, what bills someone pays, and to what someone subscribes is through their emails. If you can’t get into someone’s emails, then how do you learn where everything is? Beyond that, people have a lot of things of both personal and financial value on their phones and computers. How do you get access to those things and give them to their rightful heirs?
In late 2016, New York amended the Estate Powers and Trusts Law, the central law dealing with how estates work, to include recommendations from the Uniform Fiduciary Access to Digital Assets Act dealing with how to access digital assets after death.
What this Act provides is a roadmap for people to make sure that their digital assets can be accessed, distributed, and/or deleted as desired. It’s a powerful and essential part of both the present and future of estate planning. Still, it’s just a framework; the courts then must interpret this law to see how it applies in practice.
So, what happens if someone need to access “content” without prior authorization?
Right now, we have a lot of unsettled law. Here's what we know so far:
In Matter of Serrano, an early New York Surrogate’s Court case on this issue, found that it was “reasonably necessary for administration of the estate” to disclose the contacts and calendar of the decedent to his administrator so she could “inform friends of his passing” and “close any unfinished business”. Here, the Court granted access to non-contact information, but denied access to the content itself. Similarly, in Matter of White, a Suffolk County case, that administrator sought access to the contents of the decedent’s emails while handling the estate. The Court found that the content of emails was too sensitive to disclose, and simply permitted the disclosure of what they found “reasonably necessary” with the ability to later petition if new information was required.
What does this all mean?
So far, we can be sure that courts will be cautious in disclosing the contents of digital personal information to fiduciaries in the absence of express authority. So, if you want to make sure people can access that content, you need to do something about it.
What should we do now?
Speaking with an estate planning attorney about the specifics of your own situation is a great place to start. Generally, I think it’s a good idea to create an inventory of digital assets like photos, videos, music, and documents which we may want to leave to specific people. People might also want to inventory all web sites and applications with whom we have subscriptions. I think a good deal of thought should be given to things like emails, texts, and other private messages and whether we want to give unrestricted access to those things to those administering our estates once we die.
This is a personal decision we each must make. Either way, it’s inevitable that someone will have to deal with our estates once we die. I think it’s a kind and generous thing to plan ahead and spare our loved ones the burden and complication involved in flying blind once we eventually pass away. Without authorization, loved one's have to dig through all our old paperwork, go to court and make arguments, and generally waste a lot of time, money, and energy to do what we can easily do ourselves.
If you have questions or want to discuss your own situation, please contact me and I’ll be happy to help.