This is the last post on gifting digital assets. So far, we have examined digital assets generally and digital asset planning in the estate planning process and the business succession planning process. Today’s post will review how to handle digital assets in the estate administration process.
Traditional estate administration process v. Estate administration process with digital assets
Let’s say I’m an executor in an estate and I’ve identified digital assets that decedent made in his or her lifetime. How is the estate administration process with digital assets different from the traditional estate administration process without digital assets?
Traditionally when administering an estate, the executor monitored the decedent’s physical mailbox and reviewed what came into the mailbox to find assets. With digital assets, fewer and fewer items come in through the physical mailbox. Instead, the statements come in electronically to the decedent’s email box or digital mailbox.
Returning to our example, how does the executor access the mail in the decedent’s mailbox? It turns out that the process of accessing a deceased person’s mailbox is fraught with laws and rules about access and who may be entitled to access such information. In some cases, even criminal charges may occur, if an executor logs-in to a deceased person’s email account with certain types of permissions, even though the will appointed the person the executor of the estate.
Watch out for federal laws
It makes no sense, right? Yes and no is the answer. There are two (2) main federal laws that that we are concerned with in the estate administration process when an executor is trying to access digital assets and digital records of the deceased person.
First, the Stored Communications Act, mainly a privacy law, prohibits service providers, like gmail.com and outlook.com, from providing access to emails without the lawful consent of the deceased person. An individual may designate that in the event of death or incapacity, “X” may access email. But the designation must be provided to the service provider and/or specifically stated in the will. If a person dies without a will, and does not designate who may access the data, the information will not be released to the administrator or any person.
The second act that we need to be concerned about is the Computer Fraud and Abuse Act, an anti-hacking law, which makes it criminal to access someone’s digital assets without their consent on any medium – computer, laptop, smartphone, or tablet. While the temptation is real, no estates lawyer will recommend that the executor just start trying to crack codes to determine passwords and online accounts, without the express permission of the deceased person.
Again, the theme of this post and the others in this series is to stress the importance of including digital assets in your estate planning and business succession planning process. Digital assets have the capacity to become very valuable through little effort on the part of its owner. Each photograph in the photo gallery of pictures the deceased person took have a copyright. Pictures also carry with them sentimental value which is priceless. If grandma leaves you her digital photo collection, it is a shame not to be able to access it and keep the photos because grandma did not leave the password and permission to access the account with anyone.