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Sunday, December 10, 2017

Who’s Reading Your Emails?

Have you ever sent an email that you hope your spouse never reads? If the answer is yes, you better make sure your estate plan includes instructions about who gets access to your digital assets when you die.

This is a hot topic in the estate planning world right now because a brother and sister in Massachusetts who have been fighting since 2006 to gain access to their deceased brother’s Yahoo! account were just told by a court that the federal Stored Communications Act does not prevent the company from granting them access. Yahoo! and other email providers have hidden behind this law for years because they do not want to deal with the hassle of ensuring proper access to the accounts of people who have died. The court said that as the personal representatives for their brother, the Massachusetts siblings have a legal right to access assets and records that their brother controlled.

The brother and sister don’t get access to their brother’s emails just yet though. The court ruled that it still needs to be determined whether Yahoo!’s terms of service block access by anyone other than the person who created the account. It is possible that a court could rule that Yahoo! owns the accounts of people who have died.

The outcome in this case might depend on why the brother and sister want or need access to their deceased sibling’s account. If they are just curious about who he was talking to, a court might be more likely to say Yahoo!’s terms of service block them. If, however, they need access in order to carry out their duties as estate administrators, the court might be persuaded that Yahoo!’s terms of service don’t apply. It probably shouldn’t matter, since this is a now a contract case, but judges are human, so the reason they give for wanting access might end up mattering a lot. Right now, it is unclear why they are seeking access.  

The legal system is just now working through all the estate planning issues that have arisen in the digital age. Because the law is still evolving, it is somewhat challenging to plan for what you want to happen to your online accounts after you are gone. The best advice we can give is to fill out any forms a company has dictating what you want done with your account, and include general instructions to your personal representative in your estate plan.

For example, you can tell Facebook if you would like your account deleted or turned into a memorial account. Then, you can say in your estate plan that you want your estate administrator to take over your digital accounts and run them as you have directed. It is obviously necessary that you talk with the person you hope will serve as your estate administrator to make sure they are as comfortable carrying out these wishes as your other directives.


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| Phone: 803-594-4453
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