In a case which has been litigated since 2010, a Massachusetts Supreme Court has determined that a personal representative has the right to obtain information from a decedent’s Yahoo account. In Ajemian v. Yahoo, Inc. Mr. Ajemian passed away but had no testamentary documents. His Yahoo email account did not have a named authorized representative who could access the account. The personal representatives obtained a court order authorizing access to the email account.
Yahoo filed a motion for summary judgement arguing that such disclosure was prohibited by the Stored Communications Act (“SCA”). The summary judgment was granted for Yahoo and the personal representatives appealed.
The personal representatives argued they fell under certain exceptions of the SCA, one of which was being an “agent” of the decedent and the second, they could lawfully consent to the release of the decedent’s email account to take possession of it as property of the estate.
The appellate court determined the second argument successful and the SCA did not prevent Yahoo from releasing such information and remanded the case to the lower court. The decision was somewhat unusual as the court did not order Yahoo to release that information, only that the personal representatives were able to retrieve that information.
Florida has adopted the Florida Fiduciary Access to Digital Assets Act which makes it is easier for a personal representative to obtain such access. Also more accounts, such as Facebook, permit you to name someone to access your account.
ADVICE: Make clear in your documents that, if it is your intent, that your personal representative and trustee have the ability to access online accounts. Remember, however, that such access may give your representatives access to ALL information, such as private emails, which you may NOT want to be discovered. Thus, access is something to think very carefully about.
WORD OF THE WEEK: Summary Judgment is based upon a motion by one of the parties that contends all necessary factual issues are settled or so one-sided they need not be tried. The motion is supported by declarations under oath, excerpts from depositions which are under oath, admissions of fact and other discovery, as well as legal arguments. The opposing party will respond by counter-declarations and legal arguments attempting to show that there are “triable issues of fact.” If it is unclear whether there is a triable issue of fact in any cause of action, then summary judgment must be denied as to that cause of action.
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