CASWELL BELL & HILLISON LLP
FRESNO, CALIFORNIA

WHAT HAPPENS TO YOUR EMAIL AFTER YOU DIE?

When a young Marine died in Iraq and his parents wanted to retrieve his email as a memorial to him, they came up against the privacy policy of the Internet service provider (ISP), which declined to provide the information.  Ultimately, a probate court ordered that the parents be allowed to retrieve the emails.

When a prominent poet died without leaving the password for his e-mail account, where he kept virtually every significant piece of personal information, his daughter had no means of gaining access to that information so that she could notify others of her father’s death.  Citing privacy concerns, the ISP for the account refused to divulge the information to the daughter.

These real-life stories are the leading edge of what may become a wave of litigation concerning ownership of email information upon the death of the account holder.  The competing interests are the privacy of the account holder, coupled with the ISP’s interest in preserving that privacy, and the survivors’ rights to the property of the deceased.

Most of us think of email as the modern equivalent of a box of letters belonging to us, when, technically, email is an intangible form of property controlled by the ISP.  Nonetheless, if it is possible to spot an early trend on the issue, that tendency is to treat email information as the account holder’s property upon his or her death.  In most states, the issue is still unresolved and without clear case precedents.  At least one state has passed a law directing ISPs to turn over the e-mail of a decedent to the personal representative for the decedent’s estate.

Steps to Take Now

It will be some time before legislatures and courts catch up with the reality that millions of people use their email accounts as repositories for all sorts of information having sentimental, historical, or economic value.  In the meantime, there is some practical advice for facilitating access to email information “left behind”:

• Remember that a power of attorney is effective only when you are alive.  A power of attorney can help deal with email accounts when you are incapacitated, but will terminate upon your death.
• Read your ISP’s privacy policy to determine what your survivors may have to contend with to get access to your emails.  The policies run the gamut from providing emails to next of kin upon showing a power of attorney over the account and a death certificate, to treating email accounts as non-transferable and with no right of survivorship.
• As strange as it may sound, consider dealing directly with the issue in your estate planning by including emails specifically in your will, especially if they have monetary value.  Courts will give great deference to the wishes expressed in your will.
• In connection with this, you should archive the information to your hard drive and be sure that your survivors have any necessary passwords.  Conversely, if you want to take your emails with you, in effect, stipulate in your will that no one is to have access to your account.
• Check with legal counsel to learn whether there are any new laws in your state on the subject.  They could trump, or at least affect, whatever arrangements you have made or may be considering for handling your emails after your death.

© Caswell Bell & Hillison LLP          Attorneys and Lawyers, Fresno, California