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Death and Digital Content: Protecting Digital Assets After The Death Of A User

Death and Digital Content: Protecting Digital Assets After The Death Of A User

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In 2016, the New York Legislature enacted a version of the Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act in Article 13-A (“Article 13-A”) of the Estates, Powers and Trusts Law (“EPTL”). As illustrated by two recently decided New York Surrogate Court cases, and as previously discussed on this blog (You’ve Got (E-)Mail! Can Your Survivors Access It After Your Death? and AN UPDATE ON A FIDUCIARY’S ACCESS TO THE DIGITAL RECORDS OF A DECEDENT), the Courts have created a distinction between the disclosure of a decedent’s catalogue and that of a decedent’s digital content (Matter of Serrano54 NYS3d 64 [2017]; Matter of White, 10/3/2017 NYLJ p. 25, col. 1). The catalogue of electronic communications includes the name of the sender, the e-mail address of the sender, and the time and date of the communication. A decedent’s digital content includes the subject line and text of e-mail messages. The disclosure of a decedent’s non-content information to a fiduciary is permitted, if not mandated, by Article 13-A of the EPTL (see Serranosupra).

On the other hand, with respect to a service provider’s obligation to disclose the “content” of electronic communications, the determinative factor appears to be whether the deceased user gave an affirmative direction to disclose the content. The law first looks to whether the user used an online tool to direct disclosure of the content. Absent online direction, the law then looks to a deceased user’s will or other written instrument (see Wills, Trusts & Estates: Plain & Simple – What happens to your Social Media and other digital life when you die?). These decisions demonstrate the emergence of digital assets as the impetus of disputes in estate litigation matters and the importance of properly planning for same.

More recently, Surrogate Mella of New York County, addressed the interplay of Article 13-A of the EPTL and a decedent’s digital images. In Matter of Swezey, 2019 NYLJ LEXIS 135 (Sur Ct, New York County 2019), the executor of the decedent’s estate commenced an SCPA 2103 proceeding for the turnover of photographs stored in the decedent’s iTunes or iCloud account from Apple Inc. (“Apple”). The decedent’s will bequeathed his personal property and residuary estate to his surviving spouse, the executor of the will. However, the decedent did not use an online tool to provide direction for his digital assets, nor did his will specifically provide for the disposition of those assets. Apple informed the executor that a court order would be required to disclose the electronic data from the Apple ID. Accordingly, petitioner turned to the Court for an order directing Apple to disclose the digital data.

In analyzing the determining factors, the Court noted that “no provision in decedent’s will expressly authorizes the executor to access decedent’s digital assets and petitioner points to no other document authorizing such access. Nor does petitioner provide proof of decedent’s use of any online tool granting his personal representative access to his digital property” (id.). Nevertheless, the Court ordered Apple to disclose the photographs stored in the decedent’s Apple account. In reaching her decision, the Surrogate distinguished electronic communications from other digital assets, such as photographs, pointing out that the disclosure of other digital assets does not require proof of a user’s consent or a court order.

With regard to a fiduciary’s duties, the Surrogate further noted:

[i]n this age, a decedent’s property – which is defined as anything that may be the subject of ownership, real or personal – must include assets kept in a digital form in cyberspace. The New York legislature enacted Article 13-A of the Estates, Powers and Trusts Law to apply traditional governing fiduciaries to this new type of property and authorize fiduciaries to gain access to, manage, distribute and copy or delete digital assets. Fiduciaries are now charged with the same duty of care, loyalty and confidentially to marshal and protect a decedent’s digital assets as they do to manage a decedent’s tangibles.

The Swezey decision reflects the importance of taking measures at the planning stage to ensure a fiduciary of an estate will be permitted access to a decedent’s digital assets. The decision is also significant because it makes clear that a decedent’s digital images, as opposed to electronic communications, do not require proof of a deceased user’s consent before his or her fiduciary may access them.

Identity Theft Safeguard

Identity Theft Safeguard

Identity Theft Safeguard

Protecting Digital Assets

In addition to dealing with the emotional upheaval when someone dies, we all have a digital footprint that needs to be removed. Each of us that is even somewhat active online, has a lot of private information out there including: address history, birth date, financial institutions, social security numbers and other detailed information. Digital Assets include all your accounts where you may have uploaded photos, music or movies. Don’t forget there are credit cards or bank accounts that are associated with all online and social media accounts.

Removing this information is important to keeping your loved one’s information private. When heirs have possession of all the data, images, music etc. it ensures wishes are followed.

A key part of good estate planning now includes digital assets. There are a confusing amount of online agreements as well as state and local laws that may prevent heirs from closing these accounts.

These digital assets need to be organized and categorized. They include: computers and devices, email accounts, social media, online business accounts including shopping and media accounts where you may store pictures and videos.

Many of us immediately jump to the media, we want to preserve the family and personal images that are out there. As part of planning, you may want to designate who should be charged with getting the media off line and where it is stored. You can create a private backup such as a personal hard drive or create a backup account where your heir is a co-owner.

Online accounts have terms of service that may discuss what happens in the event of death. These vary according to the provider and where you live. Facebook, Yahoo and others have a procedure to follow. The procedures may not be easy.

It is imperative to have a will and to include digital assets in that will. Name a person to have access to your accounts and give clear instructions on how you want things handled. Your Estate Planning Professionals can help prepare and making sure your personal information is protected and handled in the manner you have outlined.

Note from Deb: Identity Theft of the deceased is big business. The identities of nearly 2.5 million deceased Americans are used to open credit card accounts, apply for loans and get cellphone services. (Source: Protecting the dead from identity theft)

Disclaimer: The material in this blog is for educational purposes only. It is not intended to replace, nor does it replace, consulting with a physician, lawyer, accountant, financial planner or other qualified professional.