Friday, February 15, 2019
Many states have complex and confusing laws that deal with the administration and distribution of a decedent's digital assets. In Estate of Swezey out of New York, Apple was considered about the legality of handing over access to photos on the deceased user's iCloud to the executor. The Court concluded that Apple was required to disclose those photographs.
The Uniform Fiduciary Access to Digital Assets Act of 2014 treated digital assets that same as traditional assets. The account owners could decide what would happen to them and the fiduciaries could have control of them when the owner died or became incapacitated. If the executor or other fiduciary did not have the password to an account, they were to ask the company for access and the company would have to comply. This faced strong opposition from technological companies and privacy advocacy groups claiming that this contradicted federal and state privacy laws.
In 2015, the Uniform Law Commission revised that act to correlate with the issues raised by the companies and advocacy groups, including not allowing access to all of the different aspects of certain accounts. Now, executors will not have authority over the content of electronic communications, unless expressly disclosed, but they can get access to other types of digital assets, such as photographs or an eBay or PayPal account. Many companies now have "online tools" that allow the user to designate who the company is to release the account to when the user dies.
Fiduciaries may request court orders if necessary. In general, access is only granted to assets that are “reasonably necessary” for wrapping up the estate.
See Stacie J. Rottenstreich and Karin Barkhorn, What Happens to My Digital Assets on Death or Incapacity?, Lexology, Februaru 6, 2019.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.