9138 / What measures should be taken to ensure digital assets are preserved for administration of the digital estate after death?

A digital fiduciary should be prepared to take necessary steps to ensure that digital assets of the estate will continue to be in existence throughout the period of administration, probate, or other necessary time period. A digital fiduciary should have, or make, a comprehensive inventory of digital assets and take necessary measures to ensure that the assets are preserved and not deleted or otherwise destroyed except according to the decedent’s wishes, or after they have been carried out. (See Q 9139 on ultimate disposition or disposal of digital assets.)

Digital assets can be divided into the following categories:

(a)   Assets stored on electronic devices and tangible media (offline assets).

(b)   Assets stored online, including email and other electronic communications and other online digital assets.

Each category of digital assets requires a different approach to preserving the assets after the death of the user, as discussed below. Digital assets stored on electronic devices require different measures than those stored in online accounts. Likewise, online electronic communications are subject to different rules than other online digital assets.

(a) Accessing offline digital assets

Some digital assets, particularly those stored on a person’s own electronic hardware devices (computers, smartphones, tablets, digital cameras, etc.) and tangible media (such as external hard drives, flash drives, CD- and DVD-ROMs), are generally within the direct control of the owner or user. A digital fiduciary should take care in the use and handling of electronic devices. Some devices, such as smartphones, can be damaged or even wiped of data after too many unsuccessful login attempts. In addition, external hard drives can be damaged by mishandling and scratches on CDs and DVDs may render any data on them unreadable. To ensure that any digital assets on physical hardware and media is preserved after death, the original items should be stored carefully in protective cases and an appropriate environment (e.g., temperature or humidity controlled). In addition, the digital fiduciary should consider copying digital data from hardware to a separate backup that is kept separately in case of damage or loss of the original source. This is especially important for potentially valuable digital assets and information.

(b) Accessing online digital assets

Unlike digital information stored on physical devices and media, information in online accounts is often out of the direct control of the user and is subject to the particular terms of each online service provider’s terms of service agreement. This means that a user must pay special attention to the terms of service and policies of the online service provider.

Some providers may delete a deceased user’s account after a specified period of inactivity. In states that have adopted the Uniform Act, sections 7 and 8 set out a process for an executor or administrator of an estate to access the decedent’s electronic communications and other digital assets. However, the terms of service may have an important impact on the ease and ability of an executor or administrator to access the deceased user’s account. It is important to consult the service provider’s policies on deletion of inactive accounts and any procedures the provider has in place to access a deceased user’s account. (See also Q 9130 to Q 9131 above.)

1. Online email and other electronic communications. Email, social media, and other electronic communications are subject to the Uniform Act in states that have adopted it.

The Uniform Act (§ 2(12)) defines an electronic communication by reference to federal law, 18 U.S.C. § 2510(12), which defines the term very broadly as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature.” This encompasses not only email, but also social media accounts, websites, and many other things. In states that have adopted the Uniform Act, section 7 covers the disclosure of the content of a deceased user’s electronic communications.

2. Online tools. Online service providers are increasingly recognizing the need to provide tools and procedures to enable access to their account holders’ accounts after they die. Under the Section 2(16) of the Uniform Act, these tools and procedures are encompassed within the term “online tool,” which is defined as “an electronic service .?.?. that allows the user, in an agreement distinct from the terms-of-service agreement.?.?., to provide directions for disclosure or nondisclosure of digital assets to a third person.” These tools are intended to be used by users while they are alive, to make decisions about the disposition of their accounts if the user dies (or in other cases of extended inactivity). An example of such a tool is Google’s Inactive Account Manager,¹ which allows users to decide if and when a user’s account is treated as inactive, what happens with the account’s data, and who is notified.

Section 4 of the Uniform Act sets out the procedure for use of an online tool to provide directions to the online service provider on disclosure of account information and content. The section also provides for substitution of authorization set out in a will, trust, or power of attorney when a user (the decedent) does not use an online tool or in the absence of an online tool.

3. Programs for accessing deceased user’s account. Some online tools are created by online service providers to deal with issues surrounding decedents’ (and others’) accounts. These are covered under the Uniform Act and a user’s instructions as expressed using an online tool will take precedence over provisions in a will, trust, or power of attorney.

Other programs are designed to provide access to the accounts of deceased users. For example, Microsoft has a Next of Kin Process² to provide access to a decedent’s account.

4. Fiduciary access. As discussed above, the fiduciary of a deceased user may access the user’s electronic communications, including the content of such communications, and other digital assets, if and to the extent authorized by the user in an online tool, a legal document such as a will, trust, or power of attorney, and the service provider’s terms of service.

When complying with a request to disclose digital assets, a service provider may provide full access, partial access (sufficient to perform the tasks the fiduciary is charged with), or provide “a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.”³

5. Other online digital assets. The fiduciary of a deceased user may obtain a copy of a catalogue of electronic communications, and the user’s (noncommunication) digital assets. Section 8 of the Unified Act provides, “Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the representative gives the custodian” [appropriate documentation].

(c)  Importance of Terms of Service Agreements

From an estate planning perspective, some terms of service agreement provisions are important to consider, especially when planning for a user’s incapacity or death. Each online service provider has its own terms of service and those terms change often. These terms often have restrictions on transferring the account to another person, letting another person use a password, as well as whether and how the account may be accessed after the death of the user.

Some online service providers have terms of service agreement provisions that specifically state that the account and its contents are not transferable to another person, even when of the user dies. (For example, Yahoo!⁴ and Apple⁵ have such a provision, which means that a digital fiduciary administrator may only request the account’s deletion. Note, however, that there may be exceptions.)⁶

These may also complicate important tasks, such as retrieving and paying a decedent’s online bills and other important documents.

Here are several questions to consider in reviewing terms of service agreements:

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   1. May the user share the user’s password or let others access the user’s account?
   
   
   2. May the user transfer the user’s account?
   
   
   3. Does the user’s account terminate on the user’s death?
   
   
   4. What rights to the user’s data are being assigned to the company?