Probate & Trust Law Section Conference Manual ... - Minnesota CLE

communications and records, (iii) when persons and entities may voluntarily
disclose customer communications or records, and (iv) when persons and entities
are required to disclose certain customer communications or records. The SWA,
in essence, prohibits digital asset providers from disclosing customer
communications and records except in very limited circumstances which, absent a
government subpoena (for example, in a murder investigation) would unlikely
apply in the estate/trust administration context.
i. In 2012, a federal judge in California rejected the attempt by
representatives of former beauty queen Sahar Daftary’s estate to gain
access to her Facebook account. The estate representatives brought a civil
action against Facebook to release the contents of the decedent’s Facebook
account in an effort to prove her state of mind at the time of her alleged
suicide.
ii. In denying the request, U.S. Magistrate Judge Paul Grewal stated that the
SWA does not require Facebook to comply with a subpoena in civil cases.
iii. In dicta, the judge suggested that nothing prevented Facebook from
deciding on its own terms who could have access to a deceased person's
communications.
VII.
Accessing Digital Assets of Deceased or Disabled Client
a. Crucial point that bears repeating: before the fiduciary accesses ANY digital
asset, ensure he is authorized by the terms of the service of the applicable digital
asset provider to do so.
b. Next steps to access digital assets where no list or storage account exists:
i. Make a list of all the decedent’s known digital assets, including all
personal and professional email accounts.
ii. After reviewing email provider terms and conditions to determine if
fiduciary access is appropriate, fiduciary should access the decedent’s
relevant email accounts to search for unknown digital assets and the
information relevant to access digital assets (i.e., passwords, security
questions, emails sent after the “I forgot my password” button is pressed,
etc.). Email is often the gateway to discovering digital and even nondigital
assets so the client’s email account may be very important.
1. Attempt to access email accounts from decedent’s home and (if
allowed) work computers, tablets, netbooks and smartphone.
a. Internet browser programs can, at the user’s option, save
username and password information, providing easy access
to an email account from a home or work computer.
b. Smartphones and tablets often have direct access to email
accounts.
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