It’s getting harder to take your secrets to the grave.
Antonio Stradivari, Benjamin Franklin, and Nikola Tesla are all reported to have taken secrets to their graves. That would be much harder today if they stored their secrets on the cloud and accessed them through smart phones, tablets, or other devices. The Massachusetts Supreme Judicial Court recently released a first-of-its-kind decision giving executors of an estate the authority to request the release of stored electronic communications from the internet service provider storing that information on its servers. The Pennsylvania legislature currently has a Senate Bill under review that formalizes this authority by statute.
In Massachusetts, a man sadly died in a bicycle accident. He had no Will, and so his brother and sister were appointed the personal representatives of his estate. The man had an email account through Yahoo!, and his brother and sister requested access to that account. Yahoo! denied their request, relying on the federal Stored Communications Act (18 U.S.C. §2701 et seq). The SCA was enacted in 1986 to, among other things, protect the privacy of a person’s “digital assets.” The SCA prohibits a service provider from disclosing digital assets unless the request falls under one of several specific exceptions. One of those exceptions is upon the account holder’s consent. As the decedent had no Will that granted his personal representatives the authority to access his email account, Yahoo! held the SCA prohibited it from granting the estate access to the decedent’s account.
The Massachusetts Supreme Judicial Court considered two arguments from the personal representatives against Yahoo!’s position. The first, that the personal reps are the Agents of the decedent, fails because Agency is only granted by the principal, and in this case he had died and not specifically appointed his brother and sister as his agents. The second, though, won the day. Massachusetts statute on estates holds that the personal representatives have the right and duty to take possession and control of the decedent’s property. The Massachusetts court therefore held that preventing access to the digital assets in accordance with the federal Stored Communications Act would result in a preemption of the State probate and common law. (Ajemian v. Yahoo!, Inc., SJC-12237)
Pennsylvania has a similar provision in our Probate, Estates, and Fiduciaries Code, establishing the right and obligation of personal representatives and executors to take possession and control of an estate’s assets. The PA State Senate has introduced Senate Bill 827 to clarify and establish the right of personal representatives to consent to the disclosure of a decedent’s digital assets. SB 827 (2017 Session) is still in the early stages, and we will watch as it progresses.
This, of course, raises some estate planning points for consideration. While we all may have some secrets, we don’t want our family to lose much of our online content. All clients should organize a system to maintain online accounts and allow your personal representatives a way to find your passwords, usernames, and account identifiers. We are happy to assist with any estate planning needs you may have. Please don’t hesitate to give us a call.
Written by Brad Zuke