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Estates Laws Regarding Digital Assets

To date five states have enacted laws that relate to digital assets with regard to estate planning. The earliest from Rhode Island and Connecticut are limited in scope to email accounts. A 2007 statute from Indiana includes “electronically stored documents of the deceased.” A 2010 statue from Oklahoma covers the broader notion of digital assets. In 2011 Idaho passed a bill based upon the Oklahoma one. Use the map and the links below to find out more information about each. Those states in blue have current proposals for a digital assets law and link to the current status of the proposal.

Jim Lamm of Digital Passing also maintains a list, including states where efforts have not yet resulted in a legislative bill.

Connecticut

Approved: June 24, 2005
Effective: October 1, 2005

Public Act No. 05-136
AN ACT CONCERNING ACCESS TO DECEDENTS’ ELECTRONIC MAIL ACCOUNTS.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective October 1, 2005) (a) For the purposes of this section:

(1) “Electronic mail service provider” means any person who (A) is an intermediary in sending or receiving electronic mail, and (B) provides to end-users of electronic mail services the ability to send or receive electronic mail; and

(2) “Electronic mail account” means: (A) All electronic mail sent or received by an end-user of electronic mail services provided by an electronic mail service provider that is stored or recorded by such electronic mail service provider in the regular course of providing such services; and (B) any other electronic information stored or recorded by such electronic mail service provider that is directly related to the electronic mail services provided to such enduser by such electronic mail service provider, including, but not limited to, billing and payment information.

(b) An electronic mail service provider shall provide, to the executor or administrator of the estate of a deceased person who was domiciled in this state at the time of his or her death, access to or copies of the contents of the electronic mail account of such deceased person upon receipt by the electronic mail service provider of: (1) A written request for such access or copies made by such executor or administrator, accompanied by a copy of the death certificate and a certified copy of the certificate of appointment as executor or administrator; or (2) an order of the court of probate that by law has jurisdiction of the estate of such deceased person.

(c) Nothing in this section shall be construed to require an electronic mail service provider to disclose any information in violation of any applicable federal law.

Rhode Island

Approved: May 1, 2007
Effective: May 1, 2007

SECTION 1. Title 33 of the General Laws entitled “PROBATE PRACTICE AND PROCEDURE” is hereby amended by adding thereto the following chapter:
CHAPTER 33-27
ACCESS TO DECEDENTS’ ELECTRONIC MAIL ACCOUNTS ACT

33-27-1. Short title. — This chapter shall be known and may be cited as the “Access to Decedents’ Electronic Mail Accounts Act”.

33-27-2. Definitions. — As used in this chapter:
(1) “Electronic mail service provider” means any person who: (A) is an intermediary in sending or receiving electronic mail; and (B) provides to end-users of electronic mail services the ability to send or receive electronic mail.
(2) “Electronic mail account” means: (A) all electronic mail sent or received by an end-user of electronic mail services provided by an electronic mail service provider that is stored or recorded by such electronic mail service provider in the regular course of providing such services; and (B) any other electronic information stored or recorded by such electronic mail service provider that is directly related to the electronic mail services provided to such end-user by such electronic mail service provider, including, but not limited to, billing and payment information.

19 33-27-3. Access to decedents’ electronic mail. — An electronic mail service provider shall provide, to the executor or administrator of the estate of a deceased person who was domiciled in this state at the time of his or her death, access to or copies of the contents of the electronic mail account of such deceased person upon receipt by the electronic mail service provider of:
(A) a written request for such access or copies made by such executor or administrator, accompanied by a copy of the death certificate and a certified copy of the certificate of appointment as executor or administrator; and
(B) an order of the court of probate that by law has jurisdiction of the estate of such deceased person, designating such executor or administrator as an agent for the subscriber, as defined in the Electronic Communications Privacy Act, 18 USC 2701, on behalf of his/her estate, and ordering that the estate shall first indemnify the electronic mail service provider from all liability in complying with such order.

33-27-4. Violation of federal law. — Nothing in this chapter shall be construed to require an electronic mail service provider to disclose any information in violation of any applicable federal law.

33-27-5. Severability. — If any provision of this chapter or the application of it to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the chapter, which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable.

SECTION 2. This act shall take effect upon passage.

Indiana

Approved: March 6, 2007
Effective: July 1, 2007

IC 29-1-13-1.1
Electronically stored documents of deceased
Sec. 1.1. (a) As used in this section, “custodian” means any person who electronically stores the documents or information of another person.
(b) A custodian shall provide to the personal representative of the estate of a deceased person, who was domiciled in Indiana at the time of the person’s death, access to or copies of any documents or information of the deceased person stored electronically by the custodian upon receipt by the custodian of:
(1) a written request for access or copies made by the personal representative, accompanied by a copy of the death certificate and a certified copy of the personal representative’s letters testamentary; or
(2) an order of a court having probate jurisdiction of the deceased person’s estate.
(c) A custodian may not destroy or dispose of the electronically stored documents or information of the deceased person for two (2) years after the custodian receives a request or order under subsection (b).
(d) Nothing in this section shall be construed to require a custodian to disclose any information:
(1) in violation of any applicable federal law; or
(2) to which the deceased person would not have been permitted access in the ordinary course of business by the custodian.
As added by P.L.12-2007, SEC.1.

Oklahoma

Approved: April 21, 2010
Effective: November 1, 2010

An Act relating to probate procedure; authorizing an executor or administrator to have control of certain social networking, microblogging or e-mail accounts of the deceased; providing for codification; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:

SECTION 1. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 269 of Title 58, unless there is created a duplication in numbering, reads as follows: The executor or administrator of an estate shall have the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.

SECTION 2. This act shall become effective November 1, 2010.

Idaho

Approved: March 16, 2011
Effective: July 1, 2011

SECTION 2. That Section 15-5-424, Idaho Code, be, and the same is hereby amended to read as follows:

[full text omitted]

(z) Take control of, conduct, continue or terminate any accounts of the decedent on any social networking website, any microblogging or short message service website or any e-mail service website.