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The loss of a loved one can be a very emotional and stressful period of time. A number of items need to be handled, such as funeral arrangements, contacting family members, coordination of church services, and working with the decedent’s attorney to make sure that all of the decedent’s assets have been probated or administered outside of probate using beneficiary designation documents and trusts. Another item that is increasingly becoming an issue after the death of a loved one is the closure of the loved one’s online accounts. This can be a time consuming experience as well.
In-house attorneys at online companies such as Facebook, Yahoo, and Google have rules that state that they will not turn over any information relating to a deceased individual’s accounts unless the deceased individual has specifically authorized this information to be turned over. These items are controlled by federal law, known as the Stored Communications Act. This Act states that those online account service providers do not have to turn over this information upon the death of a loved one unless an exception to the Act applies.
One of the exceptions to the Act is if lawful consent was supplied. Then the account service provider can disclose the online account information. The online service providers have been taking a position that they would only turn over this information if the deceased individual had specifically authorized this information to be turned over. However, there has been a recent case in the State of Massachusetts where it has been determined that an executor of an estate may grant lawful consent on behalf of the deceased person for the online provider to release the information and possibly close the account.
However, this is only the first step in allowing a fiduciary to be able to give lawful consent to an online provider to release a deceased individual’s information. The fiduciary must also follow the rules listed in the Uniform Fiduciary Access to Digital Act. This Act provides a specific procedure that the fiduciary must follow in order to request access to online account information. If the fiduciary follows this process and the online provider still refuses to disclose the information, then the fiduciary would have to file an action in State Court directing the custodian to release that information.
As you can see, this is a situation that is becoming increasingly complicated due to the significant number of individuals who are using online accounts and websites. We suggest that individuals provide specific language in their wills, trusts, and powers of attorney which would assist in allowing a fiduciary to obtain online information. Please contact your local estate planning attorney to make sure that your documents are as up to date as they can be as it relates to obtaining online information of a loved one who passes away.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.