I recently represented parents as the Personal Representative (“PR”) of their middle-aged adult child’s estate. The child was an unmarried, middle-aged adult, working for a technology start up company, with modest assets. Administering her estate should have been a relatively straight-forward project: helping her family claim life insurance and 401-K benefits, transferring company stock with the help of her company’s human resources department, disposing of tangible personal property. However, since the child’s death was untimely, the parents wanted to obtain copies of photos stored on their child’s iPhone, iMac, and iPad. Since the child never married, she did not have a will in place.
Personal Representative Cannot Access Digital Assets without a Specific Court Order.
Ordinarily, when an estate is opened, your PR (called an “executor” in some other states) receives an Order of Appointment and Letters Testamentary, allowing him to take custody of your assets, prepare an inventory, satisfy creditor claims, and distribute assets according to your will. Although Apple was accommodating, responsive and kind, it regrettably would not release the contents of child’s Apple ID without a court order more specific than simply the Order of Appointment. Apple responded immediately by e-mail and phone call, with a roadmap of what it would require, but stood its ground.
Federal Law. Presumably, Apple was worried about what all digital service providers are worried about. They have user agreements with the consumer, who may or may not wish to automatically share e-mails, and information on the cloud with his PR. Federal law provides criminal and civil penalties for providing unlawful access to stored communications. Arguably, decedent’s PR is decedent’s “agent.” PR’s authorization arguably constitutes “lawful consent” as those terms are used in the Electronic Communications Privacy Act, 18 U.S.C. § 2702, et seq. However, it is safer for Apple to release child’s iCloud photos with the protection of a court order.
State Law. Colorado adopted the Revised Uniform Fiduciary Access to Digital Assets Act (“RUFADAA”), C.R.S. § 15-1-1501, et seq., which became effective August 10, 2016. RUFADAA defines “digital asset” as “an electronic record in which an individual has a right or interest.” The information contained in the child’s Apple ID (mail, contacts, calendar, photos, iCloud drive, notes and reminders) arguably falls within RUFADAA’s definition of digital assets. After the expense (roughly $3000) of preparing and filing a petition with the court, the PR was able to provide Apple with a specific court order, including the following details:
a. The Decedent was the user of all accounts associated with the Apple ID;
b. The Petitioner is the personal representative of the Decedent;
c. As personal representative, the Petitioner is an “agent” of the Decedent, and Petitioner’s authorization to Apple to provide the contents of the digital assets associated with Decedent’s Apple ID constitutes “lawful” consent, as those terms are used in the Electronic Communications Privacy Act (18 U.S.C. § 2701 et seq.); and
d. Apple is ordered by the Court to assist Petitioner in the recovery of Decedent’s personal data from their electronic Apple devices.
How Can I Make it Easier For My Loved Ones to Administer My Digital Assets? An estate planning attorney can easily include a digital assets provision in your financial power of attorney and in your will, which will allow your fiduciary to administer these assets during your incapacity, and after your death, without the expense of obtaining a specific court order. If you don’t have estate planning documents in place, or if your documents are old, they might need to be updated to allow your fiduciaries to administer your digital assets. As with many estate planning items, the expense of putting a plan into place now might save your loved ones time, expense, and aggravation after your death.
Please contact our Denver estate planning attorneys if you would like to update your estate planning documents to address digital assets, or if you need guidance regarding the administration of a loved one’s digital estate assets.
