Access a Dead Person’s Email or Facebook
There exist limited ways to access a dead person’s email or Facebook or other online accounts, even if just to procure some of the available information.
How Can You Access the Dead Person’s Email of Facebook Without a Court Order?
Each custodian (the entity or company holding the information) has procedures in place for a user (you) to access certain portions of the dead person’s information. Google offers an Inactive Account Manager profile. If the individual set up such a profile, then Google can work with the listed individual to close the account, or, provide access to the information that you have allowed to be shared. Google Inactive Account Manager allows you to check off what content you want to be shared with your digital fiduciaries. You can give the person access to everything you would want them to have.
Similarly, Facebook offers a Legacy Account manager. Like google, Facebook allows you to appoint a person and check a box to allow that person to have access to your content.
For other entities that do not provide specific options for the user to nominate a personal representative to receive content following their death, the User can consent to their personal representative to have access to their content by executing a Last Will and Testament or a Trust or Advance Directives (applicable only during incapacity) and including provisions and specific authority for their fiduciary to access and retrieve their digital content.
For those users who died without appointing a manager or executing appropriate estate planning documents, entities typically have procedures in place for authorizing certain types of access and providing certain information. In addition, Estates Powers and Trusts Law Article 13-A provides clarity on the procedures to and information which can be provided.
Which Online Entities Presently Have Procedures in Place to Access a Dead Person’s Online Accounts?
Presently, Google, Facebook, Microsoft, AT&T, Sprint, Verizon, and T-Mobile have certain procedures in place for authorizing some form of access to a dead person’s email or other online accounts.
Information is typically divided into two categories – “non-content” and “content”. Non-content is typically considered a catalogue of the dead person’s content. For example: calendar, list of communication, list of contacts, and lists of emails are all non-content. Content is typically considered the actual information. Examples of content are the emails themselves and the dead person’s images. There are procedures in place to allow a custodian to provide the user, or the user’s personal representative, with access to the content.
A review of these procedures will quickly lead one to conclude that while you can take down a deceased person’s content, in the absence of prior user consent, you will need a Court Order to actually view and have access to the e-mails or content.
How Can you Access the Dead Person’s Email or Facebook With a Court Order?
In order to obtain a Court Order, you first need to obtain either Letters Testamentary (if Decedent died having previously executed a Will) or Letters of Administration (if Decedent died without having previously executed a Will). These Letters Testamentary or Administration will allow you to “stand in the shoes” of the Decedent.
Once you have standing to act on behalf of the Decedent, in order to attempt to obtain a Court Order to access the Decedent’s email or other accounts, you will need to bring a “Discovery and Turnover” proceeding pursuant to SCPA 2103. In this proceeding, you will have to request that the Court Order the “custodian” (the entity holding the information) to allow access to the “user” (you).
What Kind of Information May You Sometimes Access Without the Court Order?
If the digital asset is a “catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications” – for example, calendar information or a list of communications sent or received by the user of the digital asset – then as long as the user did not affirmatively prohibit the release of such information, Google or other custodians may provide access to such asset upon a written request for such information. This type of digital asset is also known as a non-content digital asset.
If a personal representative requests non-content assets, such as information that identifies each person with whom the user had an electronic communication, the time and date of the communication, and the e-mail address of the person, then the request is for a “catalogue of electronic information.” The custodian should provide such information as long as the personal representative provides the necessary documents and information.
Pursuant to Section 13-A-3.2 of the Estate Powers and Trusts Law, the personal representative should provide the custodian with a written request for disclosure, a copy of the users death certificate, and a certified copy of their Letters Testamentary. The personal representative should also comply with any additional requests by the custodian, including requests for additional information, such as an account identifier (that is, the username or email address of the user) and evidence linking the account to the user.
(Please note that under some circumstances, even though the request is for non-content information, the Custodian will still request a Court Order that disclosure of the user’s digital assets is reasonably necessary for the administration of the estate.)
Where the digital assets are “contents of electronic communications of the user,” the custodian may only disclose such contents if (a) the user gave instructions for the disclosure of such information, or (b) a Court orders disclosure of such content. Such digital assets are also known as content assets.
It should be noted that, for the purposes of the statute, a “digital asset” is an “electronic record in which an individual has a right or interest,” but it does not include the underlying digital asset itself.
When will the Court Issue an Order to Allow Access to A Dead Person’s Email or Facebook?
As mentioned above, although disclosure of non-content digital assets is permitted as long as the user did not actively prohibit such disclosure, custodians sometimes request that an agent obtain a court order granting such disclosure. Courts generally will grant such disclosure as long as the personal representative can show some relationship between the information sought and the administration of the user’s estate. Some examples of when Courts will allow access to information include: accessing an email account to confirm that a business existed; informing others about the death of a loved one; and figuring out the circumstances surrounding the death of a loved one.
However, Courts are more reluctant to grant access to content assets, such as communications or photographs themselves, on the basis that content assets might provide confidential information and information that is not necessary for the administration of the estate. In one instance, the Court did provide access to photographs because the User executed a Will leaving the user’s digital assets to a specific person. Courts are trying to balance the right to privacy with the need for administration of the estate.
Often, however, courts will grant access to non-content digital assets and provide that if the petitioner seeking disclosure of content finds information among the non-content assets that appears to be reasonably necessary for the administration of the estate, the court will entertain a subsequent petition for disclosure of the content using the new information as basis for disclosure.
What can You do to Make it Easier for Your Family and Fiduciaries to Access Your Content after Your death?
Appoint a Legacy and Inactive Account Manager and execute appropriate estate planning documents that contain digital asset provisions.
We can assist you with both creating appropriate documents to assist the custodians in providing the user’s personal representative with appropriate access as well as commencing a Discovery and Turnover proceeding to access information after a user dies. Contact Us to learn more.
For more information, please contact Guardianship, probate and estate planning attorney Regina Kiperman:
Or visit her at her office:
80 Maiden Lane
New York, NY 10038
This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
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