Who May Lawfully Reach a Digital Account
A lifetime of photographs, correspondence and records now sits behind passwords held by nobody. Whether an executor or an attorney-in-fact can reach any of it depends on the provider's terms, on state law, and above all on what the person set up before it mattered.
The rule in short
Access to a deceased or incapacitated person's digital accounts is governed by the provider's terms of service, by state legislation adopted in most places, and by any tool the provider offers for naming somebody in advance. A direction given through the provider's own tool generally takes priority over anything else, including a will. Without one, access is limited, slow and in some cases unavailable regardless of who is asking.
Every family that has administered an estate in the last decade has encountered this, and almost none of them was prepared for it. The photographs, the correspondence and increasingly the financial records are all behind an account nobody can open.
What governs access
The provider's own tool. Where one exists and was used, which generally takes priority over everything else including a will.
A will or other instrument. Where the person gave a direction about digital assets, which governs in the absence of a tool setting.
State legislation. Adopted in most states, providing a framework for fiduciary access and setting out what may be disclosed.
The provider's terms of service. Which apply where nothing else does and which are frequently restrictive about access by anybody.
And federal privacy law. Which restricts disclosure of the content of communications and is why email is treated differently from everything else.
What the hierarchy means in practice
A tool setting decides it. So a person who named a legacy contact has answered the question, whatever any later document says.
An old tool setting may surprise. Since somebody who nominated a person years ago and forgot may have displaced their own will without realizing.
A will provision helps where no tool exists. Which makes it worth including, and worth checking against any tool settings that already exist.
Terms of service are the fallback. And are written for the provider's convenience rather than for a bereaved family's.
And content is the hardest category. Since the privacy restrictions apply most strongly to the messages themselves.
| Source of authority | Priority |
|---|---|
| The provider's own online tool | Highest |
| A will or power of attorney provision | Next |
| State legislation framework | Applies throughout |
| The provider's terms of service | Fallback |
| Nothing at all | Access frequently unavailable |
What is actually at stake
Photographs. Which for many families are the single most valuable thing in an account and exist nowhere else.
Correspondence. Both sentimental and practical, including exchanges that may matter to administering the estate.
Financial records. Since statements are increasingly delivered only online, so an executor without access cannot find the accounts.
Subscriptions and recurring payments. Which continue indefinitely unless somebody can reach the account to stop them.
And accounts with value. Domain names, loyalty balances, digital purchases and other assets that are not obvious from any paperwork.
The hierarchy places a provider's own legacy tool above a will, which means somebody who nominated a contact in 2016 and forgot has effectively decided who reaches their account, regardless of what their estate planning says. That is a sensible rule and it produces surprising results. Anybody dealing with digital assets in a will should check what tool settings already exist, because the will may not be the operative document.
What a fiduciary can do without advance provision
Apply to the provider. With a death certificate and appointment documents, following the provider's own published process.
Expect delay. Since these applications are handled slowly and frequently require several exchanges before anything happens.
Expect limits. Particularly on the content of communications, which is where the restrictions bite hardest.
Consider a court order. Which is available in some circumstances, is disproportionate for most estates, and sits alongside the simplified routes in the affidavit route.
And act quickly on financial accounts. Since identifying them at all is the first problem, per preparing digital access in advance.
The same problem during incapacity
An attorney-in-fact faces it too. Since the same terms and restrictions apply while the person is alive but unable to act.
A power of attorney should address it. Expressly, since a general document of the kind described in what a power of attorney does may not cover digital assets in terms providers accept.
Providers apply the same hierarchy. So a tool setting made in advance helps here as much as it does after a death.
Bills and subscriptions still need paying. Which is the immediate practical difficulty and arrives long before anybody thinks about photographs.
And the position is worse than after death. Since there is no death certificate to present and providers are correspondingly more cautious.
This is the newest problem in estate administration and the one growing fastest, because more of what people own and remember exists only in accounts.
The hierarchy is the key to it: a provider's own tool comes first, a will next, and the terms of service last, which is the opposite of what most people assume.
That makes an afternoon spent on tool settings worth more than a clause in a will, and both are worth having so that they say the same thing.
Email content is the hardest category, because federal privacy restrictions apply to it and providers interpret them cautiously, so an executor may be refused even with a court appointment.
Photographs are what families care about most and what is most frequently lost, because they exist only in an account and no fallback copy was ever made.
Financial records now matter practically as well, since statements arrive only online and an executor without access cannot identify accounts they do not know exist.
Subscriptions continue indefinitely and quietly, which is an irritating rather than serious consequence and a very common one.
The same problem arises during incapacity and is harder, because there is no death certificate to present and providers are more cautious still.
A power of attorney should address digital assets expressly, since a general document may not be accepted by providers applying their own terms.
And the whole of it is solved in advance far more cheaply than afterward, which is the subject of the material on preparing access before it is needed.
It is worth ending on the part of this that is not legal at all. What families actually lose in these situations is not access to a service; it is thirty years of photographs of children who are now adults, the last messages somebody sent, and the ordinary record of a life that used to sit in albums and boxes and now sits in an account.
None of that is recoverable once a provider has closed an account, and providers do close them. The legal frameworks described here determine whether a fiduciary can reach an account while it still exists, and they do nothing at all about the interval before anybody thinks to ask.
Which is why the practical answer to this subject is not really about executors and powers of attorney. It is about copies: photographs downloaded somewhere a family can reach them, important documents saved outside an account, and somebody knowing that any of it exists at all.
That is an afternoon's work, it requires no legal advice, and it addresses the thing families are actually distressed about rather than the thing the law is capable of resolving.
Points to carry away
- Provider terms and state law govern access, not the will alone.
- Most states have adopted legislation on fiduciary access.
- A provider's own tool generally takes priority over other directions.
- Content of communications is treated more restrictively than records.
- Without advance provision, access may be unavailable entirely.
Questions readers ask
Does the will give an executor access?
Not by itself. Access is governed by a hierarchy in which a direction given through the provider's own online tool generally comes first, followed by a will or other instrument, followed by the provider's terms of service. That means a person who named somebody through a provider's legacy tool has effectively decided the question, and a person who dealt with it only in a will may find the will overridden by a tool setting they made years earlier and forgot. Where nothing was provided for, the terms govern and are frequently restrictive.
Why is email treated differently from other records?
Because federal privacy legislation restricts disclosure of the content of electronic communications, and providers apply that restriction cautiously. The result is a distinction between the catalogue of communications — who was contacted and when — which may be available to a fiduciary more readily, and the content of messages, which generally requires the account holder's consent given in advance. That distinction surprises families who expect an executor to be able to read a deceased person's email as a matter of course.
What happens if nothing was set up?
The fiduciary applies to the provider, supplying a death certificate, the appointment documents and whatever the provider requires, and the provider decides according to its terms and the applicable law. The process is slow, the outcome is uncertain, and for content of communications it is frequently a refusal. Some accounts are simply closed. Photographs and documents held only in an account whose access nobody arranged are, in a meaningful sense, lost.
Sources
- Legal Information Institute — Estate Planninglaw.cornell.edu
- 18 U.S.C. § 2702 — Voluntary disclosure of customer communicationslaw.cornell.edu
- Legal Information Institute — Fiduciary Dutylaw.cornell.edu
- Legal Information Institute — Executorlaw.cornell.edu
- Legal Information Institute — Privacylaw.cornell.edu
- Legal Information Institute — Power of Attorneylaw.cornell.edu
Silverline Legal Notes is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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