The vast majority of probate estates are straightforward... and tangible. Or maybe it is right to say that the vast majority of probate assets are tangible assets. Until recently, obscure intangible assets were rare. Technology has transformed even the most mundane estates into a walk through the world of contract and intellectual property law. Email or the asset that constitutes email creates a whole new set of questions for attorneys to address. Before the internet, personal correspondence was a simple concept. Someone wrote on a piece of paper. Certainly, the law of intellectual property and copyright might make an appearance in a theoretical review of the laws related to a physical letter, but it is pretty clear that physical letters are tangible assets that form part of a decedent's personal estate.
E-mail is a letter in electronic form. That's simple enough or at least it may seem so. If only it were that easy. The situation is made even more complicated because of the different ways email can be processed. There are at least two types of e-mail: POP-based and Web-based. POP-based email is usually downloaded to and stored on a local computer or other device. Web-based email is remotely accessed in via a password in a remote account and stored in one or more jurisdictions by an e-mail provider. Already, the issue of ownership of e-mail has become murky. What exactly is the e-mail and who should it belong to?
There is still an unsettled debate as to the exact nature of e-mail. Again, POP-based email is seems easy enough to deal with if it is all downloaded to a central computer and that computer is gifted to the same person who is the intended recipient of the e-mail. However, what if the electronic correspondence is of value and the recipient of the computer is different from the recipient of the e-mail? What if the e-mail is stored on multiple devices such as a desktop computer, cell phone, iPad, and netbook computer? Web-based email presents even more problems. What if the web-based account provider does not provide for transfer of the email account? What if the personal representative does not have a password? In a "normal" estate, one of the first things a personal representative is counseled to do it to have the U.S. Mail of a decedent forwarded to the representative's address. What about electronic mail? What if the decedent was receiving bills via email? Will the representative be able to get to the account?
These issues only begin to scratch the surface of a complex area that is still very much developing on a day to day basis. In the next installment, I'll give an example of this complexity in practice - the case of the Estate of Justin M. Ellsworth and Yahoo! email.
click here to go to part one
click here to go to part three
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