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


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.



Estate Planning in the Internet Age Update


I have previously blogged about the growing importance of estate planning for digital assets.  Facebook recently announced a change to its policy about managing profiles for deceased users.  Previously, Facebook allowed accounts to be memorialized.  Functionally, memorializing an account meant that the profile would be frozen in time.  Friends were able to make posts on the decedent’s page but the profile itself could not be changed.  Facebook has now changed its policy to allow individuals to designate a legacy contact.  According to Facebook, “[a] legacy contact is someone you choose to look after your account if it’s memorialized.”  After ones death, the legacy contact would have the power to:

Write a pinned post for your profile (ex. to share a final message on your behalf or provide information about a memorial service)

Response to new friend requests (ex. old friends or family members who weren’t yet on Facebook)

Update your profile picture and cover photo

Facebook notes that legacy contacts cannot:

Log into your account

Remove or change past posts, photos and other things shared on your Timeline

Read messages you’ve sent to other friends

Remove any of your friends

Facebook’s recent policy change is further evidence that estate considerations now entails more than simply distributing physical assets.  In light of the realities of the twenty-first century, it is important that you discuss digital assets and preferences with respect to social media when planning your estate.

About the author: Andrew P. Bolson, Esq. is an attorney with Meyerson, Fox, Mancinelli & Conte, P.A. in Montvale, New Jersey. Andrew’s practice focuses on commercial and estate litigation, business law, real estate law, estate planning and privacy and Internet law.


Laws Empowering Estate Fiduciaries to Access and Control an Estate’s Digital Assets Gain Momentum


In December 2012, I published an article in the New Jersey Law Journal entitled “Death in the Digital Age: An exploration of the issues that arise when disposing of a decedent’s online materials.”  The article examined the problems that occur in administrating a twenty-first century estate.  For example, can personal emails be accessed by an estate’s executor or administrator?  In a major step in bringing clarity to questions involving the administration of digital assets, Delaware recently passed the Fiduciary Access to Digital Assets and Digital Accounts Act, a law providing additional control and authority to estate fiduciaries.  The synopsis of the legislation states in part as follows:

Recognizing that an increasing percentage of people’s lives are being conducted online and that this has posed challenges after a person dies or becomes incapacitated, this Act specifically authorizes fiduciaries to access and control the digital assets and digital accounts of an incapacitated person, principal under a personal power of attorney, decedents or settlers, and beneficiaries of trusts.

The law was based on the “Uniform Fiduciary Access to Digital Assets Act,” which had been drafted by the Uniform Law Commission.  While Delaware was the first state to pass the Uniform Act, other states, including New Jersey, has considered legislation affecting the administration of an estate’s digital assets.  New Jersey’s legislation provides that

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 or any social networking website, any microblogging or short message service website or any e-mail service websites.

New Jersey’s bill was introduced in the Legislature on May 15, 2014 as has been referred to the Judiciary Committee.

The movement to empower estate fiduciaries to control digital assets is not without controversy.  Concerns remain that such laws conflict with the privacy of the decedents and with other laws, such as the Electronic Communications Privacy Act which prevents unauthorized disclosure of electronic communications.  Despite these issues, it appears that laws, empowering estate fiduciaries to gain access and control over an estate’s digital assets, are gaining traction.  In the future, as digital assets become increasingly important, the wall separating digital property from personal and real property will vanish and estate fiduciaries will likely have full control over a decedent’s digital assets.

About the author: Andrew P. Bolson, Esq. is an attorney with Meyerson, Fox, Mancinelli & Conte, P.A. in Montvale, New Jersey. Andrew’s practice focuses on commercial and estate litigation, business law, real estate law, estate planning and privacy and Internet law.