Winter 2013: Estate Planning for your Digital Life

A new estate planning area of concern that has been developing recently is the protection, control and use of one’s digital life. Whether it is a Google Gmail account, Microsoft Hotmail account, Yahoo! Mail account, Facebook account, an employer–provided email account or even pictures posted on Shutterfly, it is important to be sure that a trusted person will have access to your personal digital information in the event you become incapacitated or upon your death.

The most important first step in protecting your digital information is to compile a list of access information and passwords. This should include not only bank accounts, brokerage accounts, and credit card accounts, but also your email, music, photograph, and social media accounts.   This information should be accessible by a trusted person, such as a spouse or child, who would be able to, essentially, sit at your computer and access information. Although this may violate certain privacy laws, this may be the most practical way of dealing with your digital information in the event of a disability or death.

The better alternative is to provide your duly appointed guardian, conservator or personal representative, in the event of your incapacity or death, with the right to request the provider or digital information host for a copy of the account contents once he or she furnishes documentation to the provider showing the fiduciary’s authority (e.g., a copy of the durable power of attorney or a certified copy of the court documents appointing the guardian, conservator, or personal representative to act on behalf of the living user or of the deceased user’s estate).

In a September 20, 2012 decision, the U.S. District Court, Northern District of California, the chosen federal court jurisdiction under the Terms of Service Agreement for many providers, such as Apple, Google, LinkedIn, Twitter and Yahoo!, ruled that Facebook cannot be required to turn over a deceased user’s account absent what was considered “lawful consent.” Given this ruling, it is important that your fiduciary be provided with the authority to provide consent to the disclosure of digital information, whether contained in a duly-executed durable power of attorney, Will or trust.