protecting digital assets after death: issues to consider in planning for your digital estate

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PROTECTING DIGITAL ASSETS AFTER DEATH: ISSUES TO CONSIDER IN PLANNING FOR YOUR DIGITAL ESTATE

RACHEL PINCH†

I. INTRODUCTION .................................................................................. 545 II. BACKGROUND .................................................................................. 546

A. Digital Assets Defined ............................................................... 547 B. Categories Clarified ................................................................... 548 C. Terms of Service Agreements Untangled .................................. 550 D. Barriers to Estate Planning for Digital Assets ........................... 552 E. State Laws Regarding Estate Planning for Digital Assets ......... 553 F. The Uniform Law Commission and the Uniform Fiduciary

Access to Digital Assets Act .................................................... 555 G. Considering Federal Privacy Laws ............................................ 557 H. Case Review: Issues with Estate Planning, Digital Assets, and

Privacy ..................................................................................... 558 III. ANALYSIS ........................................................................................ 559

A. Inadequacies of Current Law ..................................................... 560 B. Changes to Terms of Service Agreements? ............................... 561 C. Ideas for Individuals .................................................................. 563

IV. CONCLUSION ................................................................................... 565

I. INTRODUCTION

Years ago family photographs were printed and placed in albums to be kept and shared with generations to come. Today, photographs are taken digitally and can be uploaded in the blink of an eye, ready to share with friends and family around the globe. Facebook is the most popular photo-sharing site, and at the end of 2013, Facebook users were uploading 350 million new photos each day.1

Nearly 75% of online adults use a social networking site of some kind.2 Facebook is the most popular social networking platform, but

† J.D. expected 2015, Wayne State University Law School; B.A., University of Michigan. 1. Cooper Smith, Facebook Users Are Uploading 350 Million New Photos Each Day, BUS. INSIDER (Sept. 18, 2013, 8:00 AM), http://www.businessinsider.com/facebook-350-million-photos-each-day-2013-9. 2. Social Networking Fact Sheet, PEW RESEARCH INTERNET PROJECT, http://www.pewinternet.org/Commentary/2012/March/Pew-Internet-Social-Networking-

546 WAYNE LAW REVIEW [Vol. 60:545

some 42% of online adults now use multiple social networking sites.3 By the end of the year 2013, there were 1.23 billion Facebook users worldwide.4 Facebook accounts hold users’ photographs, videos, and messages, but what happens to these billions of accounts when their account holders pass away?

This Note will discuss the importance of and issues within planning for digital assets after death. Part II will begin with an explanation of digital assets and terms of service agreements and highlight various barriers to estate planning for digital assets. Part II will also discuss current state and federal laws related to digital estate planning. Additionally, Part II will include a discussion of the implications of issues with digital estate planning, including actual cases. Part III of this Note will examine the inadequacies of current law, discuss possible changes for terms of service agreements, and enumerate steps for individuals to take in order to best protect their digital assets post-mortem.

Finally, this Note will conclude that a successful estate plan will address both the distribution of tangible property and digital property. The best way to protect digital assets is to inventory digital accounts and passwords, select a trustworthy and competent digital executor, and designate how digital assets should be distributed.

II. BACKGROUND

In the past, estate planners and other legal and financial professionals dealt mainly with two broad types of assets: (1) tangible property, which included personal and real property, and (2) intangible property, which included accounts, stocks, and bonds.5 On occasion, planners would work with artists and inventors and were then faced with copyright or patent law issues.6 Today, however, the proliferation of digital

full-detail.aspx (last visited March 21, 2014). As of September 2013, 71% of online adults use social networking sites. Id. This figure comes from a general social media usage question from a survey conducted July 18–September 30, 2013 among 6,010 adults in the United States. 3. Maeve Duggan & Aaron Smith, Social Media Update 2013, PEW RESEARCH

INTERNET PROJECT, http://www.pewinternet.org/2013/12/30/social-media-update-2013/#fn-6228-1 (last visited March 21, 2014). 4. Jemima Kiss, Facebook’s 10th Birthday: From College Dorm to 1.23 Billion Users, THE GUARDIAN (Feb. 4, 2014, 5:22 AM), http://www.theguardian.com/technology/2014/feb/04/facebook-10-years-mark-zuckerberg. 5. Patricia H. Char & Andrew Gespass, Emerging Issues for Fiduciaries, ALI-ABA

ESTATE PLANNING COURSE MATERIALS JOURNAL, October 2009, at 21. 6. Id.

2014] PROTECTING DIGITAL ASSETS AFTER DEATH 547

technology has changed the way people must plan for the protection of their assets after death.

The relevance of probate law to digital assets is complicated, chiefly due to the fact that the status of the digital assets as “property” remains uncertain.7 How probate property is distributed after a person’s death depends on whether an individual dies with or without a will (a legal document that details how a decedent’s estate should be distributed).8 A person who dies with a will in place is said to die “testate,” while individuals without wills are said to die “intestate.”9 When an individual dies intestate, the laws of intestacy10 govern the distribution of the estate.11

A. Digital Assets Defined

According to recent studies, nearly 92% of Americans have an online presence by the age of two.12 Often, this presence will follow an individual for the remainder of his or her life, 13 which calls into question the importance of planning for digital assets after death. To understand the issues associated with estate planning and digital assets, it is important to first understand the term “digital assets.”

The term “digital assets” came into being in the 1990s when it was used in reference to trade secrets and intellectual property in digital form.14 Currently, there is no universally accepted definition of “digital asset” or “digital estate.”15 The lack of uniform definitions can raise

7. See generally John Connor, Digital Life After Death: The Issue of Planning for a Person’s Digital Assets After Death, 3 EST. PLAN & COMMUNITY PROP. L.J. 301 (2011). 8. See JESSE DUKEMINIER, ROBERT H. SITKOFF & JAMES LINDGREN, WILLS, TRUSTS, AND ESTATES 71 (8th ed. 2009). 9. Id. 10. Id. at 71–72. 11. See generally MICH. COMP. LAWS ANN. §§ 700.1101–8206 (West 2014). Intestacy laws vary from state to state, and in 1998, the Michigan Legislature enacted the Estates and Protected Individuals Code (EPIC), which became effective April 1, 2000. Id. 12. See, e.g., Jeff Bertolucci, Nine of Ten U.S. Kids Have Online Presence by Age Two, Study Says, PC WORLD (Oct. 7, 2010, 2:45 PM), http://www.pcworld.com/article/207225/nine_of_ten_us_kids_have_online_presence_by_age_two_study.html. (“In the [United] States, 92 percent of children have a digital presence by age two.”). 13. Id. 14. See, e.g., John T. Soma & Charles P. Henderson, Encryption, Key Recovery, and Commercial Trade Secret Assets: A Proposed Legislative Model, 25 RUTGERS COMPUTER

& TECH. L.J. 97, 97 (1999). 15. Conner, supra note 7, at 303 (noting the lack of definitions in both Black’s Law Dictionary and Webster’s).


problems for attorneys who seek to assist clients with estate planning.16 The term digital assets can be used to describe “web sites, domain names, photos, electronic accounts, and other assets that only exist in digital form.”17 However, the digital world is constantly evolving, which continually adds to the confusion of what constitutes a digital asset.18

Digital assets may include photographs, electronic bank and investment account statements, e-mail records and associated passwords, and social media accounts19 such as Facebook,20 LinkedIn,21 Twitter,22 and YouTube.23 Digital assets can also include digital personal files, music and video files, medical records, and financial or legal documents.24 The culmination of these digital assets forms a person’s digital estate.25

B. Categories Clarified

The co-founder of The Digital Beyond blog,26 Evan Carroll,27 has identified two categories of digital assets.28 The first category includes those assets stored locally on tangible electronic devices that are personally owned.29 The second category includes assets stored

16. See Naoimi Cahn & Gerry W. Beyer, When You Pass On, Don’t Leave the Passwords Behind: Planning for Digital Assets, 26 PROB. & PROP. 40, 40–41 (2012). 17. Joseph M. Mentrek, Estate Planning in a Digital World, 19 OHIO PROB. L.J. 195, 195 (2009). 18. See Jamie P. Hopkins, Afterlife in the Cloud: Managing a Digital Estate, 5 HASTINGS SCI. & TECH. L.J. 209, 211–12 (2013). 19. Michael Walker & Victoria D. Blachly, Virtual Assets, ALI-ABA CONTINUING

LEGAL EDUCATION, July 14–15, 2011, at 177. 20. FACEBOOK, https://www.facebook.com/ (last visited Jan. 12, 2014). 21. LINKEDIN, http://www.linkedin.com/ (last visited Jan. 12, 2014). 22. TWITTER, https://twitter.com/ (last visited Jan. 12, 2014). 23. YOUTUBE, www.youtube.com (last visited Jan. 12, 2014). 24. Susan Porter, Digital Estates: Handling Digital Assets in the Real World, THE

PRACTICAL LAW., Aug. 2013, available at https://www.ali-cle.org/index.cfm?fuseaction=publications.issue&issueid=14417. 25. Id. 26. DIGITAL BEYOND, http://www.thedigitalbeyond.com/ (last visited Nov. 2, 2013). 27. About Evan Carroll, DIGITAL BEYOND, http://www.thedigitalbeyond.com/author/ecarroll/ (last visited Jan. 12, 2014). Evan Carroll is an account planner and digital strategist who has been researching and writing about digital death and afterlife issues since 2008. He is the co-author of The Digital Beyond, a blog that serves as a think tank for the digital afterlife. Id. 28. EVAN CARROLL & JOHN ROMANO, YOUR DIGITAL AFTERLIFE: WHEN FACEBOOK, FLICKR AND TWITTER ARE YOUR ESTATE, WHAT’S YOUR LEGACY? 39–40 (2011). 29. Id. Devices owned by an individual could include personal computers, tablets, smartphones, and e-readers.


elsewhere on devices accessed by contract with the device owner.30 The assets stored elsewhere are also known as “cloud” based assets because the information is stored away from the account holder’s physical device, typically on a server.31

Furthermore, Carroll identifies five “types” of digital assets.32 The first type includes devices, such as personal computers, tablets, smartphones, and e-readers, and the data or documents stored on those devices.33 Items stored on the devices may include documents; photographs; music; videos; and medical, financial, business, or other records.34

The second type of digital asset described by Carroll is electronic mail (“e-mail”), which includes messages received, as well as continued access to the account.35 If e-mails are stored on a personal computer, it is referred to as “local” storage, and storage on internet servers is referred to as “cloud” storage.36 Often, an e-mail account serves as a passkey to other online accounts.37 For example, Amazon and Twitter are two online companies that require an e-mail address to set up an account.38

The third type of digital asset is online accounts, which typically require a username and password, may store content such as photographs and videos, and may include social media.39 These are often referred to as digital accounts rather than digital assets.40 Examples of online accounts include social media websites such as Facebook, Twitter, LinkedIn, MySpace, YouTube, Flickr, Picasa, Shutterfly, and websites or blog platforms such as Blogger or Typepad.41

30. Id. 31. Id. at 39. “Cloud is a metaphor for the internet.” Id. at 188. 32. Evan E. Carroll, et al., Helping Clients Reach Their Great Digital Beyond: Estate Planning for Electronic Assets, TR. & EST., Sept. 2011, at 66. 33. Id. 34. Porter, supra note 24. 35. CARROLL & ROMANO, supra note 28. 36. Porter, supra note 24. 37. A passkey is when your e-mail address is used as your username to sign in to an online account. 38. See, e.g., Arthur W. Jordin, So You’d Like To . . . Get an Amazon Account, AMAZON, http://www.amazon.com/gp/richpub/syltguides/fullview/RMFLJS1OOMAZV (last visited Nov. 22, 2014) (“Your account identifier on Amazon will be your email address as assigned by your internet service provider.”); FAQs About Vine, TWITTER, https://support.twitter.com/articles/20171743-getting-started-with-vine (last visited Nov. 22, 2014) (“After installing Vine on your device, you can sign up using an email address or sign in with your Twitter account.”). 39. CARROLL & ROMANO, supra note 28. 40. Porter, supra note 24 41. FACEBOOK, https://www.facebook.com/ (last visited Jan. 12, 2014); TWITTER, https://twitter.com/ (last visited Jan. 12, 2014); LINKEDIN, http://www.linkedin.com/ (last


The fourth type of digital asset includes financial accounts that store important personal information,42 such as banking accounts or personal investment accounts. Lastly, the fifth type, online businesses, includes online stores with potential for revenue streams.43 Other scholars have presented slightly different categories.44 Author Naomi Cohn identifies digital assets in terms of four different categories: personal, financial, business, and social media.45

In addition to recognizing the different types of digital assets, it is imperative to recognize the difference between assets in general and a person’s “digital account,” specifically, access rights to digital assets.46 The distinction between digital assets and digital accounts is significant because while digital files (digital assets) may be available online, the management of the assets (a digital account) may be subject to the terms of a service agreement imposed by providers.47 The complexities of such terms of service are discussed below.

C. Terms of Service Agreements Untangled

Terms of service agreements of online companies play a fundamental role in determining what happens to specific accounts within a decedent’s digital estate. This section will explain the relationship between terms of service agreements and estate planning for the digital

visited Jan. 12, 2014); MYSPACE, https://myspace.com/ (last visited Jan. 12, 2014); YOUTUBE, www.youtube.com (last visited Jan. 12, 2014); FLICKR, www.flickr.com (last visited Jan. 12, 2014); PICASA, www.picasa.google.com (last visited Jan. 12, 2014); SHUTTERFLY, www.shutterfly.com (last visited Jan. 12, 2014); BLOGGER, www.blogger.com (last visited Jan. 12, 2014); TYPEPAD, www.typepad.com (last visited Jan. 12, 2014). 42. CARROLL & ROMANO, supra note 28; see also Molly Wilkens, Privacy and Security During Life, Access After Death: Are They Mutually Exclusive?, 62 HASTINGS

L.J. 1037 (2011) (discussing the elimination of paper records and the migration of financial records online). 43. See Carroll et al., supra note 32 (“The line between personal digital assets and those of a business may be blurred. Bloggers, small online retailers, and avid eBay users are great examples.”). 44. Naomi Cahn, Postmortem Life On-Line, 25 PROB. & PROP. 36, 36–37 (2011). 45. Id. Cahn describes the four categories as (1) personal assets, typically stored on a computer or uploaded to a website; (2) social media assets involving interactions with other individuals; (3) financial assets, such as online banking accounts, online bill payment systems, or any shopping accounts; and (4) business accounts that store customer and payment information. Id. 46. Evan Carroll, Digital Assets: A Clearer Definition, THE DIGITAL BEYOND (Jan. 30, 2012), http://www.thedigitalbeyond.com/2012/01/digital-assets-a-clearer-definition/. 47. Cahn & Beyer, supra note 16, at 41.


estate to highlight practical issues for those seeking to plan for the protection of their digital estate.

Many online providers, such as Facebook, Google, and Twitter, have terms of service agreements that require users to click “Agree” or “Continue” before creating an account or using the website.48 These agreements are called clickwrap or shrinkwrap agreements49 and are generally upheld in court.50 The fact that terms of service agreements are generally upheld is problematic because users may sign up for an account and consent to the terms of service agreement without actually reading or understanding the specific consequences.

While many individuals with online accounts sign up for an account without thoroughly reading the terms of service, explicit provisions within the terms of service may provide for (1) death of the user; (2) transferability of accounts; and (3) choice-of-law and forum-selection clauses.51 Terms of service agreements often state that the provider may make changes in the provisions of the terms of service without notification to the users.52

There is no uniformity between the agreements of two individual companies, and as a result, no uniformity between what happens to the information in, for example, a decedent’s Twitter account versus his e-mail account.53 The website Yahoo!54 considers an e-mail account to be private property, and may permanently delete a decedent’s accounts upon receipt of a death certificate.55 Another e-mail provider, Microsoft’s

48. See, e.g., Statement of Rights and Responsibilities, FACEBOOK, https://www.facebook.com/legal/terms (last updated Nov. 15, 2013); Terms of Use, INSTAGRAM, http://www.instagram.com/legal/terms/ (last updated Jan. 19, 2013); User Agreement, LINKEDIN, https://www.linkedin.com/legal/user-agreement (last updated Mar. 26, 2014). 49. Cheryl B. Preston & Eli W. McCann, Unwrapping Shrinkwraps, Clickwraps, and Browsewraps: How the Law Went Wrong from Horse Traders to the Law of the Horse, 26 BYU J. PUB. L. 1, 17–18 (2011) (“As a matter of definition, ‘clickwrap agreements’ require users to click a link before proceeding to use the services or place an order.”). 50. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996) (stating that “shrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general”). 51. Carroll, supra note 46. 52. Porter, supra note 24. 53. Walker & Blachly, supra note 19. 54. YAHOO!, https://www.yahoo.com/ (last visited Jan. 12, 2014). 55. Walker & Blachly, supra note 19, at 178. Yahoo! declares: “[Y]ou agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your accounts terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.” Yahoo Terms of Service, YAHOO!, http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html (last visited Jan. 12, 2014).


Hotmail, has a different approach that will allow access to a decedent’s account as long as the request includes a copy of the death certificate and documents verifying the relationship of the person seeking access to the decedent’s e-mail account.56

Because terms of service agreements affect the access and management of digital assets in different ways, they often serve as one of the various barriers to successful estate planning for digital assets. The next section will highlight additional barriers an individual may encounter while planning for his digital estate.

D. Barriers to Estate Planning for Digital Assets

A number of barriers exist in the process of estate planning for digital assets. People avoid estate planning in general until an event occurs that is related to death.57 The work that is involved in organizing and documenting every online account and related login information and password is a daunting task that may be off-putting to some individuals.58 On the other hand, individuals may not realize the value in or importance of planning for digital assets. However, one recent survey found that U.S. consumers value their digital assets at nearly $55,000, on average.59

Additionally, there is a lack of uniform law governing the distribution of digital assets, and a minority of states have enacted laws to address the management of digital estates.60 The apprehension, amount of work, and lack of uniform laws that individuals are faced with serve as barriers that make estate planning for digital estates more difficult. The

56. Microsoft Next of Kin Process: What To Do in the Event of the Death of a Loved One with a Outlook.com Account, MICROSOFT ANSWERS (Mar. 15, 2012), http://answers.microsoft.com/en-us/windowslive/forum/hotmail-profile/my-family-member-died-recently-is-in-coma-what-do/308cedce-5444-4185-82e8-0623ecc1d3d6. 57. Scott R. Zucker, 5 Reasons Digital Estate Planning Hasn’t Caught On . . . Yet, ZUCKER L. FIRM PLLC (July 30, 2011), http://estateplanninginfoblog.com/2011/07/5-reasons-digital-estate-planning-hasn%E2%80%99t-caught-on-%E2%80%A6-yet/. 58. PEW RESEARCH CENTER, GENERATIONS 2010, at 4 (2010), available at http://www.pewinternet.org/~/media/Files/Reports/2010/PIP_Generations_and_Tech10.pdf. 59. Passing Down Digital Assets, WALL STREET J. (Aug. 31, 2012, 8:20 PM), http://online.wsj.com/news/articles/SB10000872396390443713704577601524091363102?mg=reno64-wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10000872396390443713704577601524091363102.html. 60. Alissa Skelton, Facebook After Death: What Should the Law Say?, MASHABALE (Jan. 26, 2012), http://mashable.com/2012/01/26/digital-assets-after-death/. Connecticut, Rhode Island, Indiana, Oklahoma, and Idaho were the first five states to enact laws regarding digital estate planning. Id.


first five state laws regarding estate planning for digital assets are discussed in detail in the following section to help clarify what individuals can do to plan for their digital estate.

E. State Laws Regarding Estate Planning for Digital Assets

Connecticut led the way for innovation in estate planning when it became the first state to enact digital estate planning legislation in 2005.61 The pioneering statute references “electronic mail accounts”; however, it fails to take into account other types of digital assets such as “blogs, online bank accounts, payment accounts, photo sharing accounts, or Facebook and other social accounts.”62 While this statute was the first to recognize the need for estate planning for intangible digital assets, it is not comprehensive enough to provide fiduciary access to a decedent’s various digital assets.

The next states to enact legislation regarding digital estate planning were Rhode Island and Indiana in 2007.63 Each state built upon the language of the statute enacted by the previous state.64 Rhode Island’s statute is similar to Connecticut’s, and only allows for an executor to gain access to the contents of an e-mail account if a written request is made and accompanied by an order of the probate court.65 Indiana’s statute provides that a “custodian” must provide access to a representative of the decedent’s digital estate upon receiving a written request and a probate court order.66 However, the statute further states that “[a] custodian may not destroy or dispose of the electronically stored documents or information of the deceased person for two (2) years after

61. Id.; CONN. GEN. STAT. ANN. § 45a-334a(b) (West 2014). The statute states: An electronic mail service provider shall provide, to the executor or administrator of the estate of a deceased person who was domiciled in this state at the time of his or her death, access to or copies or the contents of the electronic mail account of such deceased person upon receipt by the electronic mail service provider of: (1) A written request for such access or copies made by such executor or administrator, accompanied by a copy of the death certificate and a certified copy of the certificate of appointment as executor or administrator; or (2) an order of the court of probate that by law has jurisdiction of the estate of such deceased person.

Id. 62. Skelton, supra note 60. 63. R.I. GEN. LAWS ANN. §§ 33-27-1–33-27-5 (West 2014); IND. CODE ANN. § 29-1-13-1.1 (West 2014). 64. Cahn, supra note 44. 65. See R.I. GEN. LAWS ANN. § 33-27-3. 66. IND. CODE ANN. § 29-1-13-1.1 (West 2014) (defining “custodian” as “any person who electronically stores the documents or information of another person”).


the custodian receives a request or order . . . .”67 It is important that a custodian may not immediately destroy digital assets so that the assets are protected according to the decedent’s wishes. It is worth noting that Indiana’s statute goes a step further than the Connecticut and Rhode Island statutes by referencing all electronically stored documents of the deceased, not only an e-mail account.

Oklahoma’s statute, enacted in 2010, has gained attention because it was the first to include social networking, microblogging, and e-mail accounts of the deceased.68 The Oklahoma law states: “The executor or administrator of an estate shall have the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.”69 While this law gives more power to the executor of an estate, the law may conflict with some companies’ terms of use.70

Idaho amended its probate code in 2011 to enhance the powers of personal representatives to include digital estate administration.71 The amended legislation allows conservators of an estate to take control of, conduct, continue, or terminate any accounts of the decedent on any social networking website, any microblogging or short message service website, or any e-mail service website.72

Furthermore, several states, including Hawaii, Maryland, New York, North Dakota, New Hampshire, Massachusetts, Virginia, and Oregon, are considering legislation regarding digital estate planning.73 Some of the bills propose that a personal representative be given access to take control of, manage, or terminate the accounts of the deceased, while other bills would explicitly override a company’s terms of service.74

67. Id. 68. OKLA. STAT. ANN. tit. 58, § 269 (West 2014). 69. Id. 70. New Oklahoma Law Puts Control of Deceased’s Social Media Accounts in Estate Executors, INT’L BUS. TIMES (Dec. 2, 2010, 4:47 PM), http://www.ibtimes.com/new-oklahama-law-puts-control-deceaseds-social-media-accounts-estate-executors-249266. This law may conflict with terms of service agreements that state no individual may access the account except for the original account creator. 71. See IDAHO CODE ANN. § 15-3-715 (West 2014). 72. Id. 73. See Amy E. Bivins, Online Intermediaries: States, Uniform Drafting Team Ponder Access Rules for Decedents’ Digital Estates, 14 COMPUTER TECH. L. REP (BNA) 146 (2013). 74. States Examine Laws Governing Digital Accounts After Death, CONGRESS.ORG (June 13, 2013), http://congress.org/2013/06/13/states-examine-laws-governing-digital-accounts-after-death/#sthash.9ObF4i7x.dpuf.


Because the new state statutes and proposed bills vary widely, the Uniform Law Commission (ULC) created a committee to examine the concerns of managing digital assets while balancing privacy concerns imposed under federal laws, including the Electronic Communications Privacy Act (ECPA),75 the Stored Communications Act (SCA),76 and the Computer Fraud and Abuse Act (CFAA).77

F. The Uniform Law Commission and the Uniform Fiduciary Access to Digital Assets Act

The ULC is a nonprofit organization that provides states with non-partisan, well-conceived, and well-written legislation that brings precision and stability to important areas of state statutory law.78 In January 2012, the ULC proposed creating a committee to study issues related to digital estate planning.79 The ULC committee held its first meeting on November 30, 2012.80 This committee created a proposed act, titled the “Uniform Fiduciary Access to Digital Assets Act” (UFADAA).81

The first draft of the act was published for a drafting committee meeting that occurred on February 15–16, 2013.82 The drafting process came to a close when the UFADAA was passed by the ULC on July 16, 2014.83

75. 18 U.S.C.A. §§ 2510–2522 (West 2014). 76. Id. §§ 2701–2712. 77. Id. § 1030. 78. About the ULC, UNIFORM LAW COMMISSION, http://www.uniformlaws.org/Narrative.aspx?title=About%20the%20ULC (last visited Oct. 20, 2014). 79. Gavin Johnson, Who Can Access Your Digital Accounts When You Die?, THE

IVLG BLOG (Feb. 14, 2012), http://www.invigorlaw.com/who-can-access-your-digital-accounts-when-you-die/. 80. Claudine Wong, Can Bruce Willis Leave His iTunes Collection to His Children?: Inheritability of Digital Media in the Face of Eulas, 29 SANTA CLARA COMPUTER & HIGH

TECH. L.J. 703, 754 (2013). 81. Committees: Fiduciary Access to Digital Assets, UNIFORM LAW COMMISSION, http://www.uniformlaws.org/Committee.aspx?title=Fiduciary%20Access%20to%20Digital%20Assets (last visited Oct. 20, 2014). 82. UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT (Nat’l Conference of Comm’rs on Unif. State Law 2014), available at http://www.uniformlaws.org/shared/docs/Fiduciary%20Access%20to%20Digital%20Assets/2014jul31_UFADAA%20as%20approved%20July%202014%20before%20styling%20and%20without%20comments.pdf. 83. UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT APPROVED (Nat’l Conference of Comm’rs on Unif. State Law 2014), available at http://www.uniformlaws.org/NewsDetail.aspx?title=Uniform%20Fiduciary%20Access%20to%20Digital%20Assets%20Act%20Approved.


The purpose of the UFADAA is to provide fiduciaries with the authority to access and manage digital assets while also respecting the privacy and desires of the account holder.84 The act addresses four distinct types of fiduciaries: “(1) personal representatives (also known as executors) of a deceased person’s estate; (2) conservators (also known as guardians) for a living person; (3) agents acting under a power of attorney; and (4) trustees of a friend.”85 The UFADAA permits a fiduciary to exercise control over a decedent’s digital property to the extent permitted under applicable law and any applicable terms of service agreement.86

However, the act may not necessarily become binding authority, as there are a number of steps that must occur before states enact the statute.87 First, a proposal must be submitted for debate in front of the whole ULC during at least two annual meetings.88 Next, the proposal must be approved by the Committee of the Whole, and once it is approved, it must then be approved by a minimum of twenty states before the proposal is adopted as an official Uniform Act.89 Even if the proposal becomes an official Uniform Act, it is the decision of each individual state whether or not to adopt the Uniform Act.90 Thus, the act can be promulgated as a uniform statute, or it could serve as a model for states wishing to enact their own legislation.91 However, roughly half of the proposals put forth by the ULC have not been adopted by a single state.92

Current legislation varies with respect to the types of digital assets included and the rights of the fiduciary. While the UFADAA would provide predictability for account holders, fiduciaries, and courts, it is also important for individuals to think about federal privacy laws and

84. UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT (Nat’l Conference of Comm’rs on Unif. State Law 2014), available at http://www.uniformlaws.org/shared/docs/Fiduciary%20Access%20to%20Digital%20Assets/2014jul31_UFADAA%20as%20approved%20July%202014%20before%20styling%20and%20without%20comments.pdf. 85. Id. 86. Id. 87. ULC Drafting Process, UNIF. LAW COMM’N, http://www.uniformlaws.org/Narrative.aspx?title=ULC%20Drafting%20Process (last visited Dec. 18, 2013). 88. Id. 89. Id. 90. Id. 91. Uniform Laws, CORNELL UNIV. LAW SCH., http://www.law.cornell.edu/uniform/ (last visited Nov. 4, 2013) (“Upon approval by the National Conference a Uniform Law is not law anywhere in the United States. It is simply a legislative proposal addressed to fifty state legislatures.”). 92. Id.


how federal laws impact how digital assets are accessed and managed by other individuals.

G. Considering Federal Privacy Laws

Online companies, especially e-mail providers, have an obligation to protect personal and sensitive information.93 When an online company such as Facebook, Yahoo!, or Google is asked to release confidential information regarding a decedent’s digital assets, the company must weigh the privacy rights of the deceased user against the family’s grief and closure.94 Many times, the company will err on the side of caution and protect the privacy of its user.95 Additionally, Facebook memorializes accounts to preserve the “fundamental concept of authenticity on Facebook.”96 Due to these privacy concerns, tension exists between online companies and those seeking to gain access to a decedent’s digital assets. A number of federal laws contribute to the privacy concerns that individuals and online companies must consider.97

The Electronic Communications Privacy Act of 1986 (ECPA) was enacted by the United States Congress to create privacy rights protecting electronic communications and files from disclosure by electronic communication service providers.98 The Stored Communications Act (SCA) was then enacted as Title II of the ECPA on October 21, 1986.99 In the context of estate planning for digital assets, the SCA serves to limit the ability of online companies to share the contents of a decedent’s

93. See, e.g., Yahoo! Privacy Center, YAHOO!, http://info.yahoo.com/privacy/us/yahoo (last visited Nov. 4, 2013) (“We have physical, electronic, and procedural safeguards that comply with federal regulations to protect personal information about you.”). 94. Geoffrey A. Fowler, Life and Death Online: Who Controls a Digital Legacy?, WALL STREET J. (Jan. 5, 2013, 7:30 AM), http://online.wsj.com/news/articles/SB10001424127887324677204578188220364231346 (“Customers’ privacy is ‘something the company respects both in life and in death,’ says Dharmesh Mehta, Microsoft’s senior director of product management.”). 95. Id. Other reasons for protecting the privacy of users include avoiding adjudication to determine who should receive a decedent’s file and releasing information that could undermine their users’ trust. Id. 96. Id. (“A Facebook spokesman said that keeping dead people’s accounts active ‘would undermine the fundamental concept of authenticity on Facebook.’”). 97. See generally The Electronic Communication Privacy Act of 1986, 18 U.S.C.A. § 2702 (West 2014); The Computer Fraud and Abuse Act, 18 U.S.C.A. § 1030 (West 2014); The Stored Communications Act, 18 U.S.C.A. 121 §§ 2701–2712 (West 2014). 98. 18 U.S.C.A. § 2702(a)(1) (“[A] person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service . . . .”). 99. Id. §§ 2701–2712.


account with relatives.100 The SCA is similar in nature to the federal health information privacy act, the Health Insurance Portability and Accountability Act of 1996 (HIPAA),101 in that there are specific guidelines as to whether, and when, online companies and holders of online data can release personal information under the SCA.102 When an individual signs a HIPAA release, they are agreeing that in the case that medical care is necessary, medical providers may release information about the individual’s location and medical condition to specified individuals.103

Another statute that was enacted by the federal government in 1986 is the Computer Fraud and Abuse Act (CFAA).104 The CFAA criminalizes unauthorized access to any computer, online service, or online account.105 To determine what is considered unauthorized, one must look to the terms of service of each website or account provider.106 Because these electronic privacy laws were passed in 1986, technology has evolved drastically while the law has remained the same. This increasing gap between legislation and changing technology has created challenges for individuals seeking information and access to their loved ones’ online accounts.

H. Case Review: Issues with Estate Planning, Digital Assets, and Privacy

In 2004, Lance Corporal Justin Ellsworth was killed by a roadside bomb while serving in Iraq.107 Ellsworth primarily used e-mail to stay in touch with his parents while he was serving overseas.108 After Ellsworth’s death, his parents contacted Yahoo! requesting access to their son’s e-mails.109 However, Yahoo! adhered to its terms of service,

100. Id. 101. Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936. 102. 18 U.S.C.A. 121 §§ 2701–2712. 103. Pub. L. No. 104-191, 110 Stat. 1936. 104. 18 U.S.C.A. § 1030 (West 2014). 105. Id. 106. Id. 107. Joel Thurtell & Cecil Angel, Nov. 13, 2004: Marine Lance Cpl. Justin Ellsworth: Marine from Michigan Dies Trying to Save Others in Iraq, DETROIT FREE PRESS (Nov. 3, 2014), http://www.freep.com/article/99999999/NEWS06/70511098/Nov-13-2004-Marine-Lance-Cpl-Justin-Ellsworth. 108. Jim Hu, Yahoo Denies Family Access to Dead Marine’s E-mail, CNET (Dec. 21, 2004, 2:49 PM), http://news.cnet.com/Yahoo-denies-family-access-to-dead-marines-e-mail/2100-1038_3-5500057.html. 109. Id.


which denied survivors the rights to the e-mail accounts of the deceased.110 Justin’s father, John Ellsworth, then decided to file suit in Oakland County, Michigan against Yahoo! to obtain access to the e-mails.111 In April of 2005, a Michigan probate judge ordered Yahoo! to release the contents of the e-mail account to the family.112

In a similar case concerning digital accounts and privacy, parents in Virginia sought to gain access to their son’s Facebook account after their son’s death.113 In January of 2011, 15 year-old Eric Rash committed suicide.114 His parents turned to his Facebook account to look for clues regarding his death.115 However, Facebook refused to divulge the password citing its own privacy policies as well as federal privacy laws.116 His parents were finally given a copy of his account on a compact disc (CD) after ten months of lobbying.117

Given this background information on digital assets and digital estate planning, this Note will now analyze the current law and the UFADAA in order to suggest the most practical ways in which individuals can best plan for their digital estates.

III. ANALYSIS

This Note will first identify the inadequacies of current law regarding estate planning for digital assets. Traditional estate planning tools were not designed to adequately address the evolving complexities related to digital assets and are not practical for current needs.118 This analysis will then highlight the importance of terms of service agreements and pose a possible solution that would allow online companies to balance privacy concerns with users’ wishes. Finally,

110. Id. 111. See In re Ellsworth, No. 2005-296, 651-DE (Mich. Prob. Ct. 2005). 112. Yahoo Will Give Family Slain Marine’s E-mail Account, USA TODAY TECH (Apr. 21, 2005, 12:49 PM), http://usatoday30.usatoday.com/tech/news/2005-04-21-marine-e-mail_x.htm?POE=TECISVA. 113. Fredrick Kunkle, Virginia Family, Seeking Clues to Son’s Suicide, Wants Easier Access to Facebook, WASH. POST (Feb. 17, 2013), http://www.washingtonpost.com/local/va-politics/virginia-family-seeking-clues-to-sons-suicide-wants-easier-access-to-facebook/2013/02/17/e1fc728a-7935-11e2-82e8-61a46c2cde3d_story.html. 114. Id. 115. Tracy Sears, Facebook Sends VA Family Information About Son’s Page Before His Suicide, WTVR.COM (Nov. 4, 2011, 8:27 AM), http://wtvr.com/2011/11/04/facebook-sends-family-information-about-sons-page-before-his-suicide/. 116. Id. 117. Id. 118. See Hopkins, supra note 18, at 210.


suggested steps will be provided for individuals to successfully plan for their own digital estates post-mortem.

A. Inadequacies of Current Law

As new innovations in technology have occurred, contemporary estate planning law has failed to stay current. In addition to digital accounts that have become part of daily life for many people, such as e-mail, social media, banking, and photo sharing websites, new uniform laws should be broad enough to provide for technological advances that have not yet occurred. Currently, no uniform definition exists for the term “digital assets,” leading to questions as to the scope of what constitutes an individual’s digital estate.119

The relevance of probate law to digital assets is complicated, chiefly due to the fact that digital assets status as “property” remains uncertain.120 How probate property is distributed after a person’s death depends on whether an individual dies with or without a will (a legal document that details how a decedent’s estate should be distributed).121

While different states have different statutes governing descent and distribution, the general trend across states, and under the Uniform Probate Code (UPC), is to distribute the largest share to the spouse of the decedent.122 A suggested and useful modification to the UPC would interpret e-mail and other similar digital assets as personal property.123 If this were the case, a spouse might be more likely to be able to claim rights to a decedent’s digital assets under the general trend of the UPC. Alternatively, the UPC could be modified such that a rebuttable presumption is created in favor of destroying digital accounts when a decedent’s estate plan fails to otherwise provide instructions for digital assets existing post-mortem.124 The creation of a way to control one’s digital assets is relevant to both online companies and the decedent’s

119. Walker & Blachly, supra note 19. 120. See generally Connor, supra note 7. 121. DUKEMINIER, SITKOFF & LINDGREN, supra note 8. 122. Id. at 73–79. 123. See, e.g., Jonathan J. Darrow & Gerald R. Ferrera, Who Owns A Decedent’s E-Mails: Inheritable Probate Assets or Property of the Network?, 10 N.Y.U. J. LEGIS. &

PUB. POL’Y 281, 319 (2007). Specifically, Darrow and Ferrera recommend modification of Section 2-203 of the UPC to read: “E-mail stored in an account of the decedent, regardless of the physical location of the storage device on which the contents of the account are stored, shall be considered inheritable personal property.” Id. 124. Justin Atwater, Who Owns E-mail? Do You Have the Right to Decide the Disposition of Your Private Digital Life?, 2006 UTAH L. REV. 397, 415 (2006) (“The [UPC] and the rules of intestate succession establish numerous default rules creating rebuttable presumptions designed to carry out the average testator’s intent.”).


loved ones.125 This would allow individuals to specifically plan for the final disposition of their digital assets, while still protecting the privacy interests of online companies if individuals do not provide specific instructions for their digital assets after death.

B. Changes to Terms of Service Agreements?

The UFADAA states that a personal representative may exercise control over the decedent’s digital property “to the extent permitted under applicable law and a terms-of-service agreement.”126 This means that to determine the rights of the personal representative, each website’s terms of service or privacy policy must be examined individually. Individual companies have policies that vary widely regarding the transferability and assignability of users’ assets.127 For example, the terms of service agreement associated with iTunes creates a non-transferable license, which does not allow users to pass on assets.128 Some companies address transferability by terminating user rights upon the death of the user, such as Yahoo!.129 On the other hand, if a website has a terms of service agreement that does not specifically address transferability and survivorship, the responsibility will fall on the shoulders of the personal representative of the decedent who will have to fight for rights to assets in each individual case.130

Some websites fail to provide explicit provisions for death within their terms of service agreements. For example, LinkedIn’s user agreement does not contain a provision regarding death, but does contain a provision stating that the account may not be transferred to another

125. See Deven R. Desai, Property, Persona, and Preservation, 81 TEMP. L. REV. 67, 68 (2008). 126. UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT (Nat’l Conference of Comm’rs on Unif. State Law 2014), available at http://www.uniformlaws.org/shared/docs/Fiduciary%20Access%20to%20Digital%20Assets/2014jul31_UFADAA%20as%20approved%20July%202014%20before%20styling%20and%20without%20comments.pdf. 127. See infra notes 128–130 and accompanying text. 128. Terms and Conditions, APPLE, http://www.apple.com/legal/internet-services/itunes/us/terms.html (last updated Sept. 17, 2014). 129. See Yahoo Terms of Service, YAHOO!, http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html (last updated Mar. 16, 2012) (“You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death.”). 130. See Terms of Service, TWITTER, https://twitter.com/tos (last visited June 25, 2012) (providing that users own their personal content without an assignability provision).


party.131 YouTube also lacks specific provisions in the event of a user’s death and has a similar non-transferability clause.132

Online companies may be better positioned than legislatures to initiate changes toward long-term solutions for responses to the death of online account holders. However, many online companies exhibit a lack of control when it comes to privacy.133 Terms of service agreements could be changed to list the available options and have the user select his choice regarding what he would like done with his account after his death, whether it be to delete the account, or to allow access to certain individuals.134 By forcing users to make a “conscious choice” regarding the fate of their digital assets, users may be more inclined to read the terms of service more thoroughly.135 By creating a “check-the-box” option, online companies would be able to balance users’ wishes and privacy concerns.136

As individual states propose and adopt legislation dealing with estate planning for digital assets, challenges will likely arise as terms of service agreements may supersede state law.137 Terms of service agreements often include a choice of law provision clearly stating which jurisdiction will control if a user brings a suit against the company.138 Most online

131. See User Agreement, LINKEDIN, https://www.linkedin.com/legal/user-agreement (last visited Nov. 25, 2014) (“You agree to: (1) try to choose a strong and secure password; (2) keep your password secure and confidential; (3) not transfer any part of your account (e.g., connections, groups) and (4) follow the law and the Dos and Don’ts below. . . .”). 132. See Terms of Service, YOUTUBE, http://www.youtube.com/t/terms (last visited Jan. 7, 2014) (“Assignment: These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by YouTube without restriction.”). 133. See Michael D. Roy, Beyond the Digital Asset Dilemma: Will Online Services Revolutionize Estate Planning?, 24 QUINNIPIAC PROB. L.J. 376 (2011); see also Atwater, supra note 124, at 398–402. 134. See Atwater, supra note 124, at 416. 135. Id. at 417. 136. See Carroll et al., supra note 32, at 66 (“Many of the online services’ contracts state that California law will control because it’s the home to many of these companies.”). 137. Cahn, supra note 44, at 38. 138. See, e.g., Google Terms of Service, GOOGLE, http://www.google.com/intl/en-US/policies/terms/regional.html (last modified April 30, 2014) (“You agree that the laws of California, U.S.A., excluding California’s choice of law rules, will apply to any disputes arising out of or relating to these terms or the Services.”); see also API Terms of Use, INSTAGRAM, http://instagram.com/about/legal/terms/api/ (“Terms of Use and the relationship between you and Instagram shall be governed by the laws of the State of California without regard to its conflict of law provisions.”).


services have listed California as their choice of law,139 and since not all users live in the State of California, it is questionable whether the decedent’s resident state estate laws would supersede the terms of service agreements set forth by the respective online companies and agreed to by the decedent.140

In one case, Bragg v. Linden Research Inc., the court found that select parts of the arbitration clause within the online company’s terms of service agreement were unconscionable.141 In Bragg, Marc Bragg sought relief against the corporate owners of an online role-playing game, Second Life, after he was expelled and had his virtual assets taken away.142 The court found that the contractual terms between Bragg and Second Life were unconscionable due to the fact that the terms of service agreement assumed too much power and was biased against Bragg.143 Black’s Law Dictionary defines “unconscionable terms” as those judged to be extremely unfair and oppressive.144 Additionally, legal scholars have compared the Bragg decision to the current Facebook terms of service agreement and found similar controls and conditions.145 To avoid being deemed unconscionable, and thereby void, online companies must be cautious to avoid constructing terms of service agreements that might be extremely unfair and oppressive for users.

C. Ideas for Individuals

While terms of service agreements and the law regarding estate planning for digital assets may be changing to address the complexities of the subject, there are a number of ways in which an individual can be proactive in determining the fate of his own personal digital estate.

The first step in prudent planning for digital assets is to create a comprehensive list of all of an individual’s online accounts, complete with login information and current passwords.146 Ideally, this list should

139. See Carroll et al., supra note 32, at 66 (“Many of the online services’ contracts state that California law will control because it’s the home to many of these companies.”). 140. Id. 141. Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 612 (E.D. Pa. 2007). 142. Id. at 595. 143. Id. at 597 (describing how the game “effectively confiscate[ed] all of the virtual property and currency that he maintained on his account”). 144. See BLACK’S LAW DICTIONARY 1561 (8th ed. 2004). 145. See Steven Hetcher, User-Generated Content and the Future of Copyright: Part Two—Agreements Between Users and Mega-Sites, 24 SANTA CLARA COMPUTER & HIGH

TECH. L.J. 829, 843 (2008). 146. See Thomas Henske, Protect Online Assets with a Digital Estate Plan, CNBC (May 19, 2014, 7:00 AM), http://www.cnbc.com/id/101560859.


be updated each time an account is added or deleted, or whenever a password is updated or username is changed. Individuals should be careful to read through terms of service agreements to determine whether or not the individual owns each asset or whether the asset is non-transferable. The collected secure login and password information should not be contained in a will, as a probated will is available through public records.147

Currently, there are a number of websites available that provide users the ability to organize their digital assets and then set up a method by which specified beneficiaries can access and manage the designated assets.148 These types of websites, referred to as digital estate plans (DEPs), could be used to safely store all of the account information and passwords necessary to access the digital assets.149 While these DEP services may be useful in that they store the inventory and instructions, individuals who use a DEP should be aware that the act of using digital estate planning services does not necessarily create the legal power to transfer property of all types.150 At this point, the legality of any attempted digital estate planning service transfer is “far from certain.”151

Once all of the vital information is compiled and safely stored, it is important to clearly name an individual as a “digital executor” who will carry out the digital estate plan upon death.152 This person should be named in the deceased’s will, and should be given specific instructions as to how to access and manage all digital accounts.153 It is important to keep in mind the limits set forth by terms of service agreements as personal wishes may not be permitted by different companies.154

147. See Frances H. Foster, Privacy and the Elusive Quest for Uniformity in the Law of Trusts, 38 ARIZ. ST. L.J. 713, 722 (2006); JESSE DUKEMINIER & STANLEY M. JOHANSON, WILLS, TRUSTS, AND ESTATES 390 (6th ed. 2000) (“A will is a public record, open to disappointed heirs, newspapers, and the just plain curious.”). 148. Such digital afterlife websites include Eterniam (https://eterniam.com/), E-Z-Safe (http://e-z-safe.com/), and Secure Safe (http://www.securesafe.com/). 149. See CARROLL & ROMANO, supra note 28, at 158–62. 150. See Roy, supra note 133, at 378. 151. Id. 152. See Passing Down Digital Assets, supra note 59. 153. Id. 154. See, e.g., Statement of Rights and Responsibilities, supra note 48. For example, Facebook’s terms of service agreement states, “You will not share your password (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.” Id.


IV. CONCLUSION

As the shift from physical to digital objects—including photos, letters, books, and music—continues, the future of digital assets remains uncertain. Technology is developing at a rapid rate, and estate planning laws have not kept pace.

Due to all of the questions and uncertainties remaining about estate planning for digital assets, individuals should consult an attorney when they decide to start planning for their digital estate. The time has come when a successful estate plan will not only address the distribution of tangible property but also adequately address the distribution of digital property. Terms of service agreements can directly impact how a decedent’s digital assets will be controlled,155 and must be considered when planning for the protection of digital assets.

The Uniform Fiduciary Access to Digital Assets Act helps fiduciaries overcome a number of obstacles in regards to estate planning for digital assets. The act addresses passwords, criminal laws regarding unauthorized access to computers (including the Computer Fraud and Abuse Act), as well as data privacy laws (including the Stored Communications Act, also known as the Electronic Communications Privacy Act).156

In order to best plan for digital assets after death, an individual should unambiguously describe how to access and how to distribute digital assets among heirs. By creating a list of accounts, passwords, and instructions for each account, an individual can ensure that their digital executor has the necessary directions to distribute or delete the digital assets, subject to terms of service agreements and federal privacy laws.157 As estate planning laws have been slow to change to reflect advances in technology, it is essential to take action and create a plan that will protect your digital legacy after death.

155. See supra Part II.C. 156. See supra Part II.F. 157. See supra notes 146–49.

protecting digital assets after death: issues to consider in planning for your digital estate

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