Michigan’s statute that regulates a personal representative’s rights and responsibilities with regard to the deceased’s personal property and estate may soon be going high tech. Senate Bill No. 293, proposed earlier this year, seeks to amend Michigan’s Estates and Protected Individuals Code (EPIC) by allowing personal representatives access to a deceased’s online accounts. Specifically, the proposed bill would add language to MCL 700.3715, stating that a personal representative could “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 electronic mail service website.”
Michigan is the latest in a slowly growing list of states to recognize that those days of sorting through the personal journals, letters, hand-written notes, and bank statements of a recently departed loved one are all but gone, replaced instead by Facebook, Twitter, email and online bank accounts. As of 2012, only five states – Connecticut, Rhode Island, Indiana, Idaho, and Oklahoma – had preceded Michigan in enacting legislation that would allow a personal representative access to the decedent’s online accounts.
This legislative trend, like invention, seems to be born from necessity. As social media, email, and online activities that include everything from banking to dating have become the norm in American culture; arcane laws have struggled to keep up with the ever-changing times. This lack of legislation has forced the hand of litigation, often pitting grieving families seeking closure against online administrators seeking to protect the privacy interests of their customers.
Michigan is not immune from such litigation. In 2005, John Ellsworth, father of slain soldier, Lance Corporal Justin Ellsworth, filed suit in Oakland County Probate Court against Yahoo! after Yahoo! denied the grieving father access to his son’s emails. See In re Ellsworth, No 2005-296, 651-DE (Mich Prob Ct 2005). L/Cpl Ellsworth, who was killed in Iraq in November 2004, had used email as his primary form of communication with friends and family. L/Cpl Ellsworth had allegedly told his father he wanted to make a scrapbook from those communications as a way of memorializing his experiences in Iraq. However, when his life was cut short, L/Cpl Ellsworth died intestate, unmarried, and without children, making his father his heir under EPIC. John Ellsworth sought to obtain the emails, claiming they were his son’s personal property, which he had the right to possess. Yahoo! argued that it could not surrender the account, based on its privacy agreement with the younger Ellsworth. In the end, the court ordered Yahoo! to release copies of the requested emails to the father. Although Yahoo! complied with the court order, it maintained that it would not change its policy, which serves to protect its customers’ privacy. This Michigan case gained national recognition and was among the first cases dealing with what is now being termed a person’s “digital probate estate.”
The undeniable reality of the Ellsworth case, and similar cases that have followed, is that a person’s estate is no longer confined to tangible personal and real property. Instead, most decedents will leave behind a “digital estate” in addition to their worldly possessions that comprise their actual estate. And if our legislators do not draft laws that address this reality, our ability to plan for the future will become severely limited. The day has come when a good estate plan will address the distribution of digital property as astutely as it does tangible or real property. While it may not be in its final form, Senate Bill No. 293 is at least a step in the right direction.
Track the progress of this bill at the following link:
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