Digital Death

       What happens to all your digital traces after you die or if you are incapacitated? What if your family needs or wants to get into your e-mails, online photos and assorted social media accounts? Access depends upon individuals policies, so it pays to check it ahead of time. Theoretically you could give passwords to heirs to avoid problems, but passwords have to be changed and this might not be the most secure option.

For example, Facebook allows you to have a legacy contact to manage your account after death. The contact can have access to what you have shared in Facebook posts, photos, videos. The contact cannot get to messages. Alternatively, you could chose to have your account permanently deleted upon death. Presumably, someone would have to notify Facebook if you die.

LinkedIn does not have a pre-death option. The person handling the estate has to fill out an online form and provide the name of the person who died, the URL of the profile, the relationship, email of deceased, link to an obituary, company they most recently worked for and a signature.

Twitter and Yahoo need a request from a personal representative or a family member and a death certificate to deactivate the accounts.

For Dropbox, you have to mail a request with the name and email of the deceased; your name, mailing address, email and relationship to the deceased; a photocopy of your government issued I.D.; and a court order establishing that it was the decedent’s intent that you have access to the account files and that Dropbox is legally compelled to provide them to you.

Google has an inactive account manager setting where it notifies you and the selected contact that the account will be treated as inactive after a pre-selected amount of time. The time out period begins after the last sign in and the notification is before the period ends. The contact has access to your data. Alternatively, Google has the option to automatically delete the account.

Absent pre-determined settings, a custodian of digital assets controlled access by their terms-of-service agreements. A new law in Arizona, the Revised Uniform Fiduciary Access to Digital Assets Act(FADAA), has been enacted to allow family members, heir and agents more flexibility.1

A user or account holder may use an online tool to direct the custodian to disclose or restrict a designated recipient to some or all of the user’s digital assets, including the content of electronic communications.2  A digital asset means an electronic record in which the individual has a right or interest.3   The online tool overrides a contrary direction in a will, trust or power of attorney.4 If you don’t want heirs to see your drunken party pictures, this could also be restricted in the online tool or estate documents.

If a user has not used an online tool or it isn’t available, he or she may allow or prohibit
disclosure to a fiduciary of some or all the digital assets.5  Either method overrides a contrary provision in a Terms-of-Service Agreement that does not require the user to act affirmatively and distinctly from the user’s assent to the terms of service.6

FADAA sets out procedures for producing the electronic communications such as what documents the personal representative, agent for the power of attorney, trustee or conservator needs to provide the custodian. When the required documents are presented, the act requires the custodian to produce a”catalogue of electronic communication sent or received my an original or successor user and stored, carried or maintained by the custodian” in an account of the trust, protected person, principal, or deceased person.7  A catalogue is “information that identifies each person with which a user has had an electronic communication, the time and date of the communication and the electronic address of the person.”8

Content is “information concerning the substance or meaning of the communication that has been sent or received by a user and is in an electronic storage by a custodian and is not readily accessible to the public.9 Content can’t be accessed unless the user expressly consented in a will, trust power of attorney or in another record; or by court order.

So if an fiduciary’s access to more than bare online information is important, then the authority should be granted in an online tool or in the will, trust, and power of attorney. The online tool negates directions in the will or trust and power of attorney, so they should not contradict each other. If the user wants to restrict the fiduciary’s access, that should be in the online tool and/or estate planning documents as well.

The statute also imposes legal duties on a fiduciary such as a duty of care, loyalty and confidentiality.10 A fiduciary or designated recipient’s authority is subject to terms of service if not otherwise directed in an estate document; and other applicable law such as copyright.11 It is limited by the scope of the fiduciary’s duties and may not be used to impersonate the user.12 In turn, the fiduciary with authority over the property of the user has a right to access any of the user’s digital assets absent online or written instructions in a will, trust or power of attorney to the contrary.13

What all this means is if it is important to preserve the content of digital assets, a person either has to check every online account they have for options for heir or fiduciary access if they are incapacitated or die; and/or have provisions in their wills or trusts and powers of attorney to allow a personal representative, trustee or agent to get into the accounts. Most people probably aren’t going to check every account, so having authority in documents would address the lack of online tools or their under-utilization.

If no direction is provided in estate documents or in online tools, the statute provides a  method for gaining partial access to accounts, rather than being subject to the whims of custodians and their terms of service agreements.

In either case, a custodian is required to disclose the requested information if they receive documentation. The documentation would be that enumerated in the statute, rather than what is in the service agreement. Some estates are probated with little or no court involvement, so the heir now has more options.

1  §§14-13101-13118

2  A.R.S. 14-13102.16.

3 A.R.S. 14-13102.10.

4 A.R.S. 14-13104(A)

5 A.R.S. 14-13104(B).

6 A.R.S. 14-13104(C)

7 A.R.S. §§14-13108, 14-13110, 14-13111, 14-13113. 14-13114

8 A.R.S. 14-13102.4.

9 A.R.S. 14-13102.6.

10 A.R.S. 14-13115(A)

11 Id. at B.1-2.

12 Id. at B.3-4.

13 A.R.S. 14-13115(C)