Texts from the dead: Post-mortem digital communication has arrived

Template of a Digital Property Provision for a Will

(template)  Generally the following provision will be inserted as a subparagraph in the Powers of Personal Representative (Executor) Section of the Will, and may be modified to be used with Trust Agreements.

Power With Regard to Digital and other Intangible Property.

In the event that at the time of my death I owned an interest in any form of electronic, digital or intangible assets (including but not limited to leaseholds, licenses, contractual rights, computing devices, data storage devices, a domain names, user accounts, email accounts, digital pictures, digital music, or any other form of electronically stored information (collectively, “Digital Assets”)), whether included in my probate estate or not, then in addition to any other powers described in this Section or provided for under applicable law, the powers granted to the Personal Representative of my estate shall include, but not be limited to, the following:

(1)   the power to obtain copies of any electronically stored information of mine from any person or entity that possesses, custodies, or controls that information, including but not limited to entities that may be subject to the Stored Communications Act under or similar state that may then be in effect;

(2)   power to decrypt any encrypted electronically stored information of mine or to bypass, reset, or recover any passwords or other kind of authentication or authorization necessary to gain access to access the Digital Assets;

(3)   the power to waive any confidentiality that I may have had under any Terms of Service Agreement or Privacy Policy that I had previously agreed to in regards to any Digital Asset, to the extent allowable under such Terms of Service or Privacy Policy;

(4)   all other powers that an absolute owner of a would have, and any other powers appropriate to achieve the proper investment, management, and distribution of my Digital Assets, including the power to employ any consultants or agents to advise or assist the Personal Representative in exercising the powers listed above.

In furtherance of such powers of personal representative, I hereby authorize, to the extent permitted by federal and state law, including the Electronic Communications Privacy Act of1986 (which includes the Stored Communications Act), as amended, the Computer Fraud and Abuse Act of 1986, as amended, any person or entity that possesses, custodies, or controls any electronically stored information of mine or that provides to me an electronic communication service or remote computing service, whether public or private, to divulge to the Personal Representative: (1) any electronically stored information of mine; (2) the contents of any communication that is in electronic storage by that service or that is carried or maintained on that service; and (3) any record or other information pertaining to me with respect to that service. This authorization is to be construed to be my lawful consent under the Stored Communications Act, as amended, and any other applicable federal or state data privacy law or criminal law. The terms used in this paragraph are to be construed as broadly as possible, and the term “user account” includes without limitation an established relationship between a user and a computing device or between a user and a provider of Internet or other network access, electronic communication services, or remote computing services, whether public or private.


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