Question:  Can an executor request a company (e.g., Apple) to turn over a decedent’s photographs stored in his digital accounts (e.g., iTunes and I Cloud)?

Answer:  If there is no provision in the decedent’s Will specifically authorizing the executor to access the decedent’s digital account (and sometimes despite such a provision), the default rule is generally the (Revised) Uniform Fiduciary Access to Digital Assets Act.

The Revised Act addresses many of these concerns of an executor in terms of access to digital assets. It also prioritizes the document that would control some of these issues. Here are some of the key changes that the act addresses:

• An executor does not have authority over the content of electronic communications (private email, tweets, chats), unless the deceased person explicitly consented to disclosure.
• An executor can get access to other types of digital assets, such as photographs or an eBay or PayPal account.
• The first place to look for authority to disclose digital assets is an “online tool,” separate from terms of service, through which users during their lifetimes can determine the extent to which their digital assets are revealed to third parties, including fiduciaries. (On Facebook, for example, the online tool is known as Facebook Legacy Contact.) If a user has provided direction through the online tool, it will supersede conflicting directives, including those in a Will.
• Look to the decedent’s or incapacitated person’s Will, trust or power of attorney to see what explicit instructions and authority, if any, are given.
• If an executor, Trustee or agent does not have explicit permission through a Will, trust, or power of attorney, look to the terms-of–service agreements to see the rules regarding access to a deceased or incapacitated person’s account.
• If the terms of service do not cover the issue, the Revised Act’s default rules apply.  Those default rules recognize multiple types of digital assets.  For certain digital assets, the Revised Act gives fiduciaries unrestricted access.  However, other types of electronic communications, the statute only gives fiduciaries very limited access, if anything.
• Fiduciaries may request court orders if necessary.  In general, access is only granted to assets that are “reasonably necessary” for wrapping up the estate.

Comment:  It is best if you specifically state what you want to happen to your digital assets in the event of death or disability.  You should also leave specific instructions about how to access digital accounts (i.e.,usernames and passwords).

As always, if you have any questions or would like to learn more, please contact Steve Shane at sshane@offitkurman.com or 301.575.0313.

ABOUT STEVE SHANE

sshane@offitkurman.com | 301.575.0313

Steve Shane provides strategic counseling to clients in need of estate administration, charitable giving and business continuity planning while minimizing estate, gift, and generation-skipping transfer tax exposure. He offers legal guidance to clients on asset protection and the proper disposition of assets in accordance with the client’s objectives, while employing tax planning techniques such as the use of irrevocable trusts, life insurance planning, lifetime gifts and charitable trust. He is also experienced with drafting documents for business planning, the incorporation and application for exemption for Private Foundations and the administration of decedents’ estates.

ABOUT OFFIT KURMAN

Offit Kurman is one of the fastest-growing, full-service law firms in the mid-Atlantic region. With over 185 attorneys offering a comprehensive range of services in virtually every legal category, the firm is well positioned to meet the needs of dynamic businesses and the people who own and operate them. Our twelve offices serve individual and corporate clients along the I95 corridor in the Virginia, Washington, DC, Maryland, Delaware, Pennsylvania, New Jersey, and New York City regions. At Offit Kurman, we are our clients’ most trusted legal advisors, professionals who help maximize and protect business value and personal wealth. In every interaction, we consistently maintain our clients’ confidence by remaining focused on furthering their objectives and achieving their goals in an efficient manner. Trust, knowledge, confidence—in a partner, that’s perfect.

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