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New Jersey passes Digital Estate Planning Law: How does it impact you?

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New Jersey passes Digital Estate Planning Law: How does it impact you?

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The Massachusetts Supreme Judicial Court recently ruled that the Stored Communications Act does not prohibit Yahoo! from disclosing contents of a deceased user’s email account to the administrators of the decedent’s estate as long as the administrators lawfully consent to the release of the information.  In this case, Yahoo! declined to allow the Plaintiffs, siblings of the decedent and co-administrators of his estate, to have access to the decedent’s email account. Upon receiving a Court Order, Yahoo! provided basic information about the decedent’s email communications, such as sender information, email addresses and time stamps for each message sent and received.  However, Plaintiffs still had to file suit against Yahoo! to obtain the actual contents of the emails.  While the Court’s decision permits Yahoo! to release the email contents to the administrators, whether the administrators’ consent overrides Yahoo!’s terms of service policy remains at issue and the case is ongoing.

The Massachusetts case highlights the growing importance of digital assets and the difficulty that can come when digital assets are not addressed in estate planning.  As with Yahoo!, social media companies, email providers and websites can set their own policies with respect to what happens to a user’s account upon death.  Facebook’s policy, for example, is to memorialize a user’s account if they are notified that the user has passed away.  A Facebook user can also designate a legacy contact to manage the memorialized account and, if the user authorized, the legacy contact can download a copy of what you’ve shared on Facebook. The legacy contact cannot, however, log into the account, remove or change any past posts or friends, or read any messages.  In the alternative, users can let Facebook know in advance if they would like to have their account permanently deleted upon notification of the user’s death.

New Jersey recently addressed the issue of digital estate assets by passing the Uniform Fiduciary Access to Digital Access Act.  The new law allows an individual to decide for themselves the level of access to digital assets they want their next to kin have upon their death.  Prior to the Act, the release of digital assets was at the discretion of individual websites.  However, now, a person can determine for themselves whether to authorize another person to access their emails, social media accounts and other online accounts upon death.

The Act prioritizes instructions left in “online tools.”  Online tools are those instruments created by websites to allow a person to make digital asset decisions, such as Facebook’s legacy contact feature.  For example, if someone set a legacy contact in Facebook, the designated person would override decisions by that person’s Executor as designated in the person’s Will.  In the absence of direction left in an “online tool,” instructions left in a Will, Trust or Power of Attorney will govern.  For this reason, it is critical that online assets are addressed during the estate planning process.  In the event that you have not used an online tool or do not have a Will that addresses digital assets, the disclosure of online assets will be determined by the terms of use policies of a given website.

Planning for digital assets has become a necessity.  In this digital age, almost all companies are encouraging paperless statements, from financial institutions, insurance companies, utility providers, and more.  It’s becoming increasingly difficult for fiduciaries to effectively administer estates when they are being locked out of online accounts that hold vital information.  It has taken the Plaintiffs in the Massachusetts case years of costly litigation just to establish their authority to access email content, and they are still now at the mercy of the Probate Court’s interpretation of Yahoo’s terms of service agreement.  By adopting the Uniform Fiduciary Access to Digital Access Act, New Jersey has established a decedent’s right to plan ahead and grant authority to a fiduciary, including executors, administrators, agents, trustees and guardians, to access and manage digital assets.

To make sure you are prepared for your digital afterlife, you should contact an estate planning attorney to update or establish your estate plan to include your digital assets.

 

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