When an individual dies, the Executor or Administrator (“fiduciary/representative”) of the estate has the responsibility of distributing the assets to the beneficiaries. The Executor must sift through files to determine what assets the decedent held at the time of death. With the advent of technology it has become more difficult to get a handle on people’s assets after they die. Even if the Executor finds an asset, he or she has to access the electronic document with a password.
Google has recently announced that, as part of its updated storage policies, it will begin deleting the content of inactive accounts as of June 1, 2021. An account is considered inactive if the user has not accessed the account for 24 months, and Google has indicated that multiple notifications will be sent prior to the removal of any content.
The disclosure of a decedent’s information to a fiduciary is governed by Article 13-A of the New York Estates Powers and Trusts Law, which was signed into law on September 29, 2016. The law was designed to address digital assets. A digital asset is defined an “electronic record in which an individual has a right or interest. The term does not include an underlying asset unless it is itself an electronic record”.
Under the law, upon receipt of a written request, a copy of a death certificate and a copy of the appointment of the representative, a custodian (website) of electronic records has a duty to disclose to the representative of the estate “a catalogue of electronic communications sent or received by a deceased user.” Practically speaking, this means that the Executor will have access to a contact list (catalogue) rather than the content.
As such, the Executor still doesn’t have automatic access to the content. The law provides that the custodian must disclose the content in situations where a deceased user has consented to, or a court order has mandated, disclosure of the contents. The law also lays out specific requirements in order for the representative to obtain content, including the ability of the custodian to request the username, so that they are not in violation of the Electronic Communications Privacy Act.
After passage of the law, cases were brought to address the issues and apply the law. New York cases address and discuss the difference between digital content and catalogue. Catalogue includes the name of the sender, the email address of sender and the time and date of the communication. The content includes the subject line and text of e-mail messages.
Based upon the complexity of the issues, it is very important to address access to digital content in a Last Will and Testament. The Will can allow the Executor specific authority to deal with the digital content in the estate.
The recent announcement by Google that it will be deactivating inactive accounts beginning June 1, 2021, exemplifies how, now more than ever, it is important to make a catalogue of one’s digital accounts, usernames and passwords to avoid deactivation before and after death.
Ronald A. Fatoullah, Esq. is the founder of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Stacey Meshnick, Esq. is a senior staff attorney at the firm. The law firm can be reached at 718-261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.
This is not intended to be individual legal advice which can only be provided if you retain our firm. If you need legal advice please contact our offices to schedule a consultation at 1-877-ELDERLAW (1-877-353-3752).