Governments are traditionally behind the curve when it comes to formulating policy around new technology. That is why I was surprised to learn that states like Connecticut, Indiana and Rhode Island now require websites (the “custodians” of electronically stored documents or information) to provide the estate’s personal representative access to online content.
Indiana’s official provision is *IC 29-1-13-1.1* :
* Electronically stored documents of deceased
* Sec. 1.1. (a) As used in this section, “custodian” means any person who electronically stores the documents or information of another person.
(b) A custodian shall provide to the personal representative of the estate of a deceased person, who was domiciled in Indiana at the time of the person’s death, access to or copies of any documents or information of the deceased person stored electronically by the custodian upon receipt by the custodian of:
(1) a written request for access or copies made by the personal representative, accompanied by a copy of the death certificate and a certified copy of the personal representative’s letters testamentary; or
(2) an order of a court having probate jurisdiction of the deceased person’s estate.
(c) A custodian may not destroy or dispose of the electronically stored documents or information of the deceased person for two (2) years after the custodian receives a request or order under subsection (b).
(d) Nothing in this section shall be construed to require a custodian to disclose any information:
(1) in violation of any applicable federal law; or
(2) to which the deceased person would not have been permitted access in the ordinary course of business by the custodian.
/As added by P.L.12-2007, SEC.1./
Parsing the legalese for a moment, this means that the State of Indiana now officially recognizes the value in requiring the inclusion of online assets into the gross estate. Connecticut and Rhode Island have similar provisions but only apply to email accounts (please email me if you know of any additional states). Furthermore, the Indiana provision outlines the elaborate procedure for actually gaining access to online content in Section (b). This could potentially increase the cost of wrapping up an estate due to the burdensome and time consuming procedure for accessing these online assets.
A major issue that I have not seen discussed yet is that Indiana’s progressive measure sets up a conflict between what the State of Indiana wants for their citizenry and what websites will actually disclose. Section (d) Sub 1 & 2 basically take the teeth out of this provision by not requiring disclosure if such disclosure violates applicable federal law (i.e. Digital Millennium Copyright Act) or the decedent would not have been permitted access during the normal course of business (i.e. violates a website’s Terms of Service or Privacy Policy). The latter is a shakier argument but may still work if a website can successfully assert that the deceased had a license to use said website and that license expired upon death.
States like Connecticut, Indiana and Rhode Island want your next of kin to have access to online content and you need to help ensure it. You don’t want your loved ones to be denied access because a website asserts a provision like Indiana’s Section (d) Sub 1 or 2 as a valid exception to enforcement of probate code. Legacy Locker is the perfect resource to circumvent such an escape clause completely and allow your estate representative to include online content into your cumulative estate.
Gregg Delman
Director of Business Development
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Please note that the material contained in this blog is not legal advice and is not to be relied upon in a court of law. Furthermore, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax related matters addressed herein.
Gregg Delman 2 Comments
