One of the most common questions I receive from estate planners is: “Why is planning for my clients’ digital assets so important? I could care less what happens to my Yahoo e-mail account.” While some attorneys may not see the value, your clients’ opinion may differ.
Case in point: Lance Corporal Justin Ellsworth. Justin was killed in action during a roadside bomb attack in Iraq back in 2004. Justin was a prolific Yahoo Mail-user and his family knew this. Grieving for their son, they wanted access to his email account so they could know some of the last words and thoughts Justin sent to his friends and loved ones. Unfortunately, Justin’s parents did not know the Yahoo password that would have allowed access to the account.
After some initial attempts to gain access by contacting Yahoo directly, the Ellsworth’s resorted to legal action. Yahoo’s position was that even if they wanted to grant Justin’s parents access, it was a violation of their Privacy Agreement and Terms of Service to do so. Essentially, their hands were tied. An Oakland, CA court disagreed and forced Yahoo to turn over the information. Unfortunately, the disk Yahoo provided did not contain Justin’s “Sent Items.” Eventually, that information came in the form of thousands of printed documents months later. For more about Justin’s family’s story, see the article on MSNBC here.
This case clearly demonstrates the hassle and expense involved with trying to obtain access to a user’s online account in the event of death or incapacity. It’s important to ask your clients whether they have a desire to protect their digital content and provide a safe mechanism for its transfer. E-mail is just one example of the types of valuable accounts (both monetary and intrinsic) that your clients may want to preserve.
I’ve heard other anecdotal stories like the one above, but would like to hear more from you. Have you ever encountered a situation where your clients were unable to access a loved one’s information? Have you heard of cases similar to the Ellsworth Family? Have you had troubles working with large web services companies to help your clients access information?
Looking forward to hearing your thoughts,
Gregg Delman
Director of Business Development
Disclaimer:
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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.
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