Complication With Optimistic Outcome

It was recently reported that Facebook will allow users to “to designate a friend or family member to be your Facebook estate executor and manage your account when you're dead.”  This “legacy contact” will be able to manage the decedent’s Facebook page, download photographs, make postings, and respond to “friend” requests.  While this is welcome news to many, it got me thinking about whether such service-specific estate representatives are necessary, and, on the other hand, whether limitations imposed on the service-specific “executor” are necessarily enforceable.

With the growth of technology, more and more individuals have an online presence.  Most often, this includes the creation of substantial amounts of property in the digital world, such as photographs, essays (blogs), videos, audio recordings, and communications (e-mail, Twitter messages, etc.).  While not delving into issues of copyright law, internet security or technological feasibility, I would like to share my thoughts on what New York’s current estate administration rules may have to say about these issues.

First and foremost, a decedent’s "Estate" is deemed to be “[t]he interest which a person has in property” under Estates, Powers, and Trusts Law (EPTL) §1-2.6(a); and “property” is defined as “anything that may be the subject of ownership, and is real [i.e. real estate] or personal property” under EPTL §1-2.15 and Surrogates Court Procedure Act (SCPA) §103(44).  I am not aware of any New York cases interpreting these definitions with regard to access to (or distribution of) “digital” property, but I think these definitions are surely broad enough to encompass it.

Once a person is designated the executor of an estate (by being granted “Letters Testamentary”), one of his or her principle duties and rights is to, “…acquire the remaining undivided interest in the property of an estate or trust in which the fiduciary, in his fiduciary capacity, holds an undivided interest.” See EPTL §11-1.1(b)(2).  Additionally, under EPTL §11-1.1(c), a court “may authorize the fiduciary to exercise any other power which in the judgment of the court is necessary for the proper administration of the estate or trust.”  In sum, this means that it is the responsibility and right of the executor of an estate, to take possession of all property of the estate, so as to pay necessary debts and taxes, and transfer the remaining property to the proper recipients (the heirs or beneficiaries).  If a person states in his or her Will that “all my property goes to my wife”, arguably, even digital property should be so distributed.

But what if Facebook, Google, Twitter or some other e-mail service or website refuses to transfer a decedent’s accounts to the custody and control of a properly-appointed executor?  I think our law is currently broad enough to address that as well.  Under SCPA §2103, an executor “may present to the court … a petition showing ... that any property as defined in §103 or the proceeds or value thereof which should be paid or delivered to him is (a) in the possession or control of a person who withholds it from him, … or (b) within the knowledge or information of a person who refuses to impart knowledge or information he may have concerning it or to disclose any other fact which will aid the petitioner in making discovery of the property …”  If the court is satisfied that there are reasonable grounds to order an examination of the “withholding” party, “it must make an order accordingly.”  Additionally, “the court may issue a citation to the person alleged to be in possession or control of the property to [explain] why he should not deliver such property or its proceeds or value.”  This type of §2103 motion has been successfully made of individuals for the return of “a car, musical equipment, computers, software, a copy machine, furniture, sporting equipment and memorabilia, family photographs and a cell phone” (In re Estate of Fenlon, 95 A.D.3d 1406, 1407, 942 N.Y.S.2d 908, 909 (2012)).

Of course, qualifying as the executor or administrator of an estate, demanding access to the decedent’s online accounts, and then compelling the divulging of those digital properties through a Surrogate’s Court §2103 proceeding can be both time-consuming and expensive.  Certainly, it would be better to appoint such a “legacy contact” with Facebook (and other online services one uses).  But if doing so, it is imperative to make sure that the "legacy contact" is not a different person from that which you appointed as an executor in your Will.  Otherwise, your executor could have the same problems accessing the accounts holding your digital properties as if there were no “legacy contact” named at all.