Do Your Will and Power of Attorney Cover Digital Assets?

Most of us have some sort of digital life.  Digital Assets include personal email accounts, online financial accounts, frequent flyer/hotel rewards and social media accounts (where we often store videos, photos & other important memories), even frequent flyer mile accounts!

But up until recently, the law wasn’t up to date and it was unclear on who has the authority to deal with these financial and emotional assets.  However, we’re now seeing some courts and legislators dealing with this issue.

For example, in Ajemian v. Yahoo (478 Mass, 169 (2017)), the Massachusetts Supreme Judicial Court addressed whether the personal representative of a decedent’s estate had a right to access the decedent’s personal email account managed by Yahoo.

When John Ajemian died, his brother and sister were appointed as the personal representatives (the “executors”) of his estate and sought to access to his Yahoo account. Yahoo agreed to turn over certain limited information to them when presented with a court order, but refused to provide them unfettered access to the account. John’s siblings claimed that as personal representatives of the estate, they were entitled to access the email account because it was an asset of the estate.

Yahoo claimed that it was prohibited from permitting access to the account under the Federal Stored Communications Act (the SCA) and, it wasn’t obligated to allow them access under the terms of service (TOS) that John agreed to when opening the account.

The court determined that the SCA didn’t prohibit Yahoo from disclosing John’s emails. The SCA allows disclosure with the “lawful consent” of the originator. The court also decided that a personal representative of the estate could lawfully consent to the disclosure under the SCA and concluded that Congress intended for lawful consent to encompass certain forms of implicit consent. It also noted that the general purposes of the SCA were to prevent unauthorized access by law enforcement and private parties, not personal representatives of estates working to manage estate assets.

As a result, Yahoo couldn’t claim that it was prohibited from providing access.  In addition, there was no resolution as to whether the TOS allowed Yahoo to refuse to grant access.

In the end, it all worked out.  However, you should plan ahead and make sure your documents cover digital assets.

Do You Know What Your Email Terms of Service Say?

The case acknowledges that John’s email account is an estate asset of which the personal representatives may seek access and control. While the SCA doesn’t preclude a personal representative from accessing the account, it isn’t clear if the fine print relating to the email account in this case would give Yahoo authority to prevent access.

So, what can you do? 

Review procedures for each of your accounts that have a user name and password to find out their policy for owners who become disabled, or die.  Make a list of your digital assets with all the access information, and store it where it can be located and used by your Power of Attorney agent or executor.

And while state law on digital assets is evolving (and the interplay with federal law is very complicated), your Will should include provisions that authorize fiduciaries to handle digital assets.  It is important to discuss this with your estate attorney as some individuals may not want to give family members access to certain digital assets, such as emails, following their death.

If it’s been more than 5 years since you last updated your estate planning documents, it’s probably a good idea to have them reviewed.  For a complimentary consultation, please call 610.933.8069.

David M. Frees, III
Attorney, Speaker and Author
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