Dealing with Email of a Decedent

Here is part six in the series of articles on virtual estate planning

Emails and email accounts, like physical letters, are the most obvious and most commonly discussed form of virtual asset. As I mentioned in a previous post, there are two types of email services: POP based and web-based. POP based email is usually downloaded to a local computer and suffers from less confusion about property rights in the email than web-based email (that is not to say that POP based email is without its own set of issues).

Web based email services rely on "off-site" servers administered by e-mail service providers. Web based email accounts and their contents are a form of digital asset. These assets are governed by the contract that establishes the account, commonly known as the "Terms of Service" (this is that page that most people don't read and just click "okay" and then "next" to move on in the process of establishing an account). There is no uniformity among email service providers, so each is feeling its own way in the digital world when dealing with the death of a user.

I will discuss a few of the web based service providers and their current policies for dealing with the death of an account user. These policies are constantly changing, so please, do not rely on the information here. Always check the current terms of service.

Yahoo!: Yahoo's policy on deceased person's accounts has not changed since the resolution of the Ellsworth Estate. Per their terms of service, there is no right of survivorship and a Yahoo account is non-transferrable. Upon receipt of a death certificate, Yahoo! will freeze an account for 90 days and then terminate the account and delete the contents. Basically, without a password, the only way for a personal representative to obtain access to a Yahoo! account is with a court order. Obviously, time is of the essence and a savvy probate practitioner will query a client early in the probate process about email accounts so as not to miss the termination deadline.

Google Gmail: A Google account stays open forever unless a request is made to delete the account. Google will provide access to the account of a deceased person. Access will be granted within 30 days after Google is notified of the death of an account holder if the person notifying Google provides the following: Information to be provided to Google (faxed to 650-644-0358 or mailed to Google Inc., Attention: Gmail User Support, 1600 Amphitheatre Parkway, Mountain View, CA 94043): 1. the full name and contact information of the person seeking access to the account, including a verifiable email address; 2. the Gmail address of the individual who passed away; 3a. a full header from an email message received at the verifiable email address from the Gmail address in question and 3b. the entire contents of the message; 4. proof of death; and 5. one of the following: a) if the decedent was 18 or older, proof of authority under local law that the person making the request is the lawful representative of the deceased or his or her estate or b) if the decedent was under the age of 18 and the person making the request is the parent of the account holder, provide a copy of the decedent’s birth certificate.

In addition, Google will provide information faster than the stated policy of thirty days thirty day processing time pursuant to a valid court order.

Microsoft Hotmail: Hotmail is a part of the Microsoft WindowsLive service. If Microsoft is notified via email that an account holder is deceased, they will "freeze" and preserve an account for six months during which a requester must complete an authorization procedure to obtain account information. If the process is not complete within six months, Microsoft will delete the account. Like Yahoo!, account contents will be turned over but the password will not be provided nor reset. Microsoft will not transfer an account.

Per the MicrosoftLive Solution Center:
Please note: While this process allows for the release of the account contents to you, we will not provide or reset the password for this account. This process does not allow for the transfer of account ownership; however, once your documentation has been verified, we can close the account at your request. This policy is in place to protect the privacy and security of all Hotmail users. Upon authentication, we will also close the account at your request.

Instructions to for the WindowsLive account procedure are here.
Hotmail will mail a CD filled with the contents of the Hotmail account. Information that must be provided to Micorosoft (faxed to 425-708-0096 or mailed to Microsoft Corp., Attn: Online Services Custodian of Records, 1065 La Avenida, Building 4, Mountain View, CA, 94043): 1) a photocopy of the user's death certificate; 2) paperwork from the requestor stating that he/she is the benefactor or executor to the deceased's estate and/or holder of a Power of Attorney and are next-of-kin; 3) a photocopy of the requestor's driver's license or a government issued identification; 4) a document with answers to the following questions about the account, for verification purposes: account name, first and last name on the account, date of birth, city, state and zip code, approximate date of account creation, approximate last date of sign in, a physical mailing address

Editorial comment: obviously Microsoft is unaware of the difference between a power of attorney agent and a personal representative. Technology is sometimes as backwards as the law is to technology in its application of legal concepts

Obviously, there are other email providers out there. They will all have different requirements for access to and turnover or cancellation of an email account. Consult the terms of service for those accounts to see what the playing field looks like.

click here for part five