Until just a few years ago, an estate executor on the hunt for important documents might find them in a filing cabinet at a decedent's home or in a safety deposit box at a bank. But now, with powerful computers and easy access to the Internet, a decedent may have sent and stored those papers solely in digital form. This has raised technological and legal issues that an executor must address in today's online world.

If a decedent warehoused documents on a hard drive or an Internet storage site, did she leave a record of the files' locations, along with any user IDs and passwords needed to access those areas? Could an executor be committing an illegal act if he retrieves someone else's digital files? Unfortunately, most current state laws are either unclear or have little to say about an executor's role in gaining access to a deceased individual's digital property. Likewise, user agreements that often accompany online services like email (and which a user must agree to before obtaining such services) are equally unclear or silent about this access issue.

So what's an executor to do in this digital era? Let's look at some of the main issues an executor may face regarding digital access, legal areas that are ripe for consideration and solutions for obtaining such access.

Moore's Law

Suffice it to say that the role of an estate executor and how that role is fulfilled have changed very little in the past century. The executor must still track down and offer for probate a decedent's last will and testament. The executor must also still compile statements from financial institutions such as banks, brokerage firms and credit card companies to provide evidence of assets the deceased owned or debts he owed.

In ideal circumstances, these physical documents are stored in a decedent's home or kept in a safe deposit box at a local bank. Some financial statements might arrive by mail periodically. In such instances, locating and retrieving these documents is fairly easy.

But over the past few years, this traditional collection process has grown considerably more complicated. And executors can thank Gordon Moore for that. In 1965, Moore, the co-founder of Intel, made a prediction — later dubbed “Moore's Law” — that computing power would double about every two years. As it happens, the “law” has proven fairly accurate — at least in part because technology companies have used it as a goal.1

One consequence is that today's computers and Internet servers are fast enough so that financial companies can routinely offer electronic statement delivery and online bill payment — services that tended to be problematic at slower speeds. In addition, some law firms now scan wills, trusts and other documents, sending them to clients in electronic form (as laws permit), to supplement or replace paper versions.2 Many accounting businesses follow the same practice with tax returns.

As a result, today's executor may have to locate those documents, not in a decedent's home or safety deposit box as in the past, but on a hard drive, in an email account or somewhere else in the vastness of cyberspace. That can be problematic. It may also break the law.

Post-mortem Access

Unfortunately, once in the digital world, estate executors and “digital” executors can find themselves operating in a legal limbo, unsure at times whether their actions are legal. (More about digital executors later.)

One issue is the legal status of a decedent's computer (which is a tangible asset) and its contents (which are intangible assets). Think of it as how a house and its contents are two separate assets. Does the executor have a legal responsibility to save or delete the intangible contents of a hard drive before delivering the computer to a beneficiary? Or is the beneficiary entitled to the contents therein?

If the executor accesses a decedent's email account without the email provider's knowledge, that action might violate the email provider's terms of service.3 Such access could constitute identity fraud4 or violate a cybercrime law such as the Computer Fraud and Abuse Act.5 (The Computer Fraud and Abuse Act is intended to reduce hacking of computer systems, in particular those belonging to the federal government and financial institutions. Section 1030(a)(2) of the act makes it a criminal offense to intentionally access a computer without authorization to obtain information contained in a financial record of a financial institution.) Likewise, brokerage houses and banks could view third-party access of financial accounts without legal permission as an attempt to defraud.

We would argue that the executor steps into the shoes of the decedent and therefore has the authority to access her email accounts. Other commentators believe that in situations in which there are no clear directions, an executor's best practice is to avoid this potential conflict altogether and obtain a court order or direction granting account access.6

Digital Assets

A decedent's digital assets may extend to ownership of websites, blogs, videos and virtual characters (avatars) that she may have created. She may have registered, but not used, domain names that could be sold for many thousands of dollars.7 The decedent could also have books, plays or screenplays that exist solely online. And all of these items could have some monetary value.

State Laws

When it comes to laws pertaining to post-mortem access to a decedent's digital assets, most states are far behind the times, providing little or no direction on the matter. Only a handful of states have attempted to address this issue. Some states, such as Connecticut and Rhode Island, direct email service providers to grant an executor or administrator access to a decedent's email account, upon receipt of a written request, a copy of the death certificate, a certified copy of the certificate of appointment and a court order.8 Oklahoma and Idaho have passed laws within the last year giving an executor or an administrator of an estate much broader powers over a decedent's online accounts and websites.9 These laws, effective as of November 2010 in Oklahoma and July 2011 in Idaho, contain identical language giving the executor or an administrator of an estate “the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.”10

Of course, this legislation applies only to residents of the above-mentioned states and thus provides no help for executors in other states. Moreover, no matter where the decedent lived, she would have had to sign a contract accepting a service provider's terms of service. Depending on the provider, one of those terms might have established that any online content stored on the service is the property of the provider. In the digital era, it seems as though possession really is nine-tenths of the law.

Less Paper

We may be in the digital age, yet acceptance of “paperless statements” is far from widespread and even differs by document type. One survey estimates that the percentage of customers accepting digital documentation from financial institutions ranges from just 21 percent for home equity statements to up to 39 percent for debit card statements.11 Yet paperless statements seem likely to become more prevalent over time.

The trend to paperless statements goes hand in hand with environmental initiatives designed to reduce the volume of paper used by corporate America. Some companies are reinforcing the move to “going green” by offering customers a small financial incentive to go paperless, while others are providing certain statements only in electronic form, leaving customers with little or no choice in the matter.

Any further shift to paperless may be good news for the environment — but bad news for the executor. All those e-documents have to be “warehoused” somewhere — and digital storage areas have multiplied in the past few years.

Digital Storage

The first place to look for digital documents is the decedent's home computer or laptop. Many individuals don't protect their computers with a password. But even if a decedent's device is locked, accessing it is still possible. (Note that biometric identification such as thumbprint, retina or voice recognition adds a layer of complexity.)

A tech-savvy executor can run a Google search for “how to access a computer without a password.” The less adept might visit an electronics store such as Best Buy. In-house technicians may be able to access the hard drive and copy its contents to a DVD. They may first ask to see documentation such as a death certificate, certificate of appointment or the decedent's proof of ownership.12

Other commonly used physical storage devices include external flash drives, portable hard drives, tablet devices and smart phones. Figuring out which one may contain the latest version of a decedent's documents can add another wrinkle to an executor's search. Physical devices, however, are only one option for storage. There are many more online. Email accounts are the first place an executor should search. Stored emails from banks, brokerage firms and credit card companies can contain PDF statements or links to financial statements. There may also be information from online services such as eBay or Facebook, and these accounts should be shut down.

Ideally, a decedent has left her executor information related to location and access. If not, email retrieval will probably be more complicated.13 The first step is to contact the service provider; there should be a “Contact Us” link on the provider's website. The executor may need to provide legal documentation such as a death certificate and proof of appointment as executor. But some companies still might prevent access, requiring an executor to obtain a court order to sidestep their policies.

Importantly, some email services automatically delete email accounts after a period of inactivity. Such action could result in the loss of valuable information about the decedent. That's why an executor should access the decedent's account as soon as possible.14

A decedent might also have uploaded emails or documents to online password-protected warehousing services such as iStorage or Dropbox. These companies have proliferated as part of the broader high-tech shift to so-called “cloud” computing (that is, network access to a shared pool of computing resources).

Interestingly, the cloud could make an executor's job a bit easier. Services such as Apple's iCloud (scheduled to launch this year) promote the ability to store an individual's information online, update it based on changes made on one device and then download the updated information automatically to other devices on the same account. As a result, each linked device would have the most up-to-date contents, and the executor wouldn't have to search for the one containing the latest information.

To save time and reduce uncertainty, estate planners may want to encourage testators who aren't using the cloud to establish a document storage area on a single device (or burn files to a CD or DVD), to update the files as needed and to let the executor know the device's location and access codes.

Then again, more people than ever are accessing their financial services accounts directly, reducing the need to store any documents or emails using PDFs or embedded links. In the fourth quarter of 2010, for instance, almost 30 million Americans checked their bank, credit card or brokerage accounts directly by using a mobile device such as a smart phone, a 54 percent increase from the same period in 2009.15 Assuming this trend continues, an executor may face the prospect of having no option but to access a decedent's financial accounts directly. The challenge will be identifying the institutions at which the decedent had established account relationships.

All of this may be difficult. Yet the executor who does manage to get into an account should easily be able to cancel automatic debits, as needed, as well as track and search years of deposit and debit information. That job used to involve poring over check registers, often a painstaking task.

Past Passwords

In ideal circumstances, a decedent kept a list of online storage locations and access codes. It would include answers to questions about secret information, such as a first pet's name, which some services require before providing account access. But we live in an era of widespread cybercrime. Financial institutions and antivirus software companies have responded by recommending that we change passwords often to protect our assets. If a decedent was conscientious enough to do so, the executor can only hope that the decedent also updated her password list accordingly. Testators should regularly be reminded to do so.

Did the decedent use services such as Legacy Locker, LastPass or Asset Lock, which store IDs and passwords in encrypted form? If so, an executor may face other issues. Typically a service user appoints an individual to access the information in the event of the user's death. But there's always the chance the appointee passes away before doing so. The online facility might be hacked, as was the suspected case recently at LastPass.16 Or a service may go out of business altogether. Any of these occurrences can thwart an executor's ability to easily access passwords.

Digital Executor

Some testators hire a bank or an attorney as their estate executor; others pick a responsible friend or relative. In the digital era, more people are asking a tech-savvy person to be a so-called “digital executor.” (Some experts recommend choosing two digital executors, if need be, one for business affairs and another for personal affairs.17)

The role of digital executor typically comes with important responsibilities: closing email accounts, social networking accounts such as Facebook and Twitter and photo storage accounts such as Flickr. A digital executor should also shut down shopping accounts like Amazon, as they probably have credit card data on file.

Additional duties can involve archiving photos, videos and other digital content to a DVD or thumb drive. If a decedent had items on eBay or similar auction-style websites, the digital executor may need to finalize transactions in progress or send funds to or retrieve them from PayPal. Then there's the gracious step of contacting people in the decedent's digital address book to let them know she has died.

Entrustnet,18 a site that provides information about how to delete online accounts and digital assets, is a useful resource for the digital executor. But digital executors should proceed with care: They shouldn't close a decedent's email accounts before the estate executor has retrieved important information. Digital executors should also become familiar with corporate regulations and state laws as they pertain to third-party access to a decedent's digital assets.

Notably, the legal authority and standing of a digital executor are as yet untested. What happens if the digital executor acts without approval from the estate executor or, worse, in conflict with the estate executor's instructions? Is the digital executor entitled to compensation? Does the digital executor expose himself to liability in fulfilling these responsibilities? We would like to see all these issues addressed sooner rather than later.

Bottom Line

Clearly, estate law has a way to go to catch up with Moore's Law — and to some extent that will probably always be the case. It would be helpful if states began taking steps to define the legal standing of the digital executor and the estate executor vis-a-vis digital issues. Prudence dictates that testators consider listing locations and access codes for all important digital documents — and to keep that list updated. The digital era is upon us; we must adapt accordingly.

This article is designed to provide general information about ideas and strategies. It is for discussion purposes only since the availability and effectiveness of any strategy is dependent upon your individual facts and circumstances. Always consult with your independent attorney, tax advisor, investment manager and insurance agent for final recommendations and before changing or implementing any financial, tax, or estate planning strategy. The content represents thoughts of the author and does not necessarily represent the position of Bank of America. U.S. Trust Bank of America Private Wealth Management operates through Bank of America, N.A. and other subsidiaries of Bank of America Corporation. Bank of America, N.A., Member FDIC.

Endnotes

  1. “Gordon Moore says aloha to Moore's Law,” April 13, 2005, www.theinquirer.net/inquirer/news/1014782/gordon-moore-aloha-moore-law. Note that Moore himself declared in 2005 that his forecast had become a self-fulfilling prophecy.
  2. Deborah L. Jacobs, “When Others Need the Keys to Your Online Kingdom,” May 20, 2009, www.nytimes.com/2009/05/21/your-money/estate-planning/21ONLINE.html.
  3. Stephan S. Wu, “What Happens to Your Virtual Property When You Die?” p. 2, Dec. 2, 2009, www.3dinternetlaw.com.
  4. Chris V. Nicholson, “Virtual Estates Lead to Real-World Headaches,” Nov. 1, 2009, www.nytimes.com/2009/11/02/technology/internet/02assets.html?ref=chrisvnicholson.
  5. 18 U.S.C. Section 1030(a)(2)(A).
  6. Jonathan J. Darrow and Gerald R. Ferrera, “Who Owns a Decedent's Emails: Inheritable Probate Assets or Property of the Network?” www.law.nyu.edu/ecm_dlv2/groups/public/@nyu_law_website__journals__journal_of_legislation_and_public_policy/documents/documents/ecm_pro_060742.pdf.
  7. www.webrocket.hu/en/blog/domain-names-sold-1-million-dollars-and-more/2010042369.
  8. See, e.g., “An Act Concerning Access to Decedents' Electronic Mail Accounts,” Connecticut Public Act No. 05-136; “Access to Decedents' Electronic Mail Accounts Act,” Rhode Island General Laws Title 33, Chapter 27.
  9. See, e.g., 58 Oklahoma Statute Section 269 (2010); Idaho Code Section 5-424, Part Z.
  10. 58 Oklahoma Statute Section 269 (2010), Idaho Code Annotated Section 15-3-715 (28) (2011). Oklahoma and Idaho have enacted laws giving an executor of an estate access to social networking accounts of the deceased.
  11. PayItGreen 2010 Survey, https://admin.nacha.org/userfiles/File/2010PayItGreenSurvey.pdf.
  12. Telephone conversation with Best Buy technician, Boston, May 2, 2011. Actual policy may differ by store or company.
  13. www.ehow.com/how_5425470_access-deceased-persons-email.html.
  14. http://mablesonlaw.com/articles-webinars/.
  15. “Comscore: Number of U.S. Mobile Financial Account Users Surges 54 Percent to 30 Million in Past Year,” www.comscore.com/Press_Events/Press_Releases/2011/3/Number_of_U.S._Mobile_Financial_Account_Users_Surges_54_Percent_to_30_Million_in_Past_Year.
  16. Randall Stross, “Guard That Password (and Make Sure It's Encrypted),” June 11, 2011, www.nytimes.com/2011/06/12/technology/12digi.html.
  17. www.deathanddigitallegacy.com/2010/01/08/what-is-a-digital-executor.
  18. http://blog.entrustet.com/digital-executor-toolbox/.

Colin Korzec, far left, is a managing director and estate settlement national executive at U.S. Trust, Bank of America Private Wealth Management in Boston. Ethan A. McKittrick is an assistant vice president and estate settlement officer at U.S. Trust, Bank of America Private Wealth Management in Boston

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