Difficulties in Accessing Employer E-mail Accounts

A fiduciary1 or family member may run into difficulties in trying to access the e–mails from an incapacitated or deceased person’s employer. The employer may claim that the employee did not own the e–mails under the company’s electronic resources policy. Also, the company might refuse to release portions of an employee’s e–mails because:

  • the information is a trade secret, protected by state laws, that the company does not want to disclose;
  • the information is covered by a non–compete or non–disclosure agreement that the employee signed;
  • the information is “protected health information,” which may include an employee’s information related to a company’s group health insurance plan, medical reimbursement account, etc., that protects the employee from unauthorized disclosure and that is regulated by HIPAA’s privacy rule, but an incapacitated employee’s designated health care agent or a deceased employee’s personal representative may have authority to request this information (follow this link for more information on personal representatives under HIPAA);
  • the information is confidential medical information that is protected from disclosure by a state law or the Americans with Disabilities Act;
  • the information is “nonpublic personal information” that the company collects about its customers that is protected from disclosure and regulated by the Gramm–Leach–Bliley Financial Modernization Act of 1999; or
  • the information may be private or privileged (including the attorney client privilege) with respect to the employee, but an incapacitated employee’s financial agent or a deceased employee’s personal representative may have authority to request this information.

The appropriate fiduciary should contact the employer promptly for any desired information, because an electronic data retention policy may limit how long the company retains an employee’s e–mails and other digital property.


1A fiduciary may include a guardian, conservator, executor, personal representative, trustee, attorney–in–fact, etc.

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E-Mail Accounts Are the First Step in Finding Digital Property

When family members and fiduciaries1 are looking for a person’s digital property, e–mail accounts are a great place to start. E–mail accounts often hold information about other Internet accounts the person has, and gaining access to a person’s primary e–mail account can be the key to unlocking those other accounts using a password reset option for those other accounts.

Many bills can now be delivered by e–mail instead of by regular mail, so it’s important to check e–mail accounts early and often for billing statements. Access to e–mail accounts is also critical to identify business transactions in progress.

E–mail accounts may also hold correspondence with sentimental value to the family. It’s important to access e–mail accounts of an incapacitated or deceased person promptly to preserve these accounts, especially for a free online e–mail service. The main free online e–mail providers, Microsoft’s Windows Live Hotmail, Yahoo! Mail, and Google’s Gmail, generally close a person’s account if it is not accessed within four to nine months, and they generally delete the e–mail data for the account if it is not accessed within eight to twelve months.

A person may have e–mail accounts through his or her Internet service provider (for example, a cable company, phone company, etc.), through an employer, or through a free or paid Internet service like Microsoft’s Windows Live Hotmail, Yahoo! Mail, and Google’s Gmail. There may be obstacles in obtaining access to a person’s e–mail accounts, especially an employer–provided e–mail account or a free online e–mail account, which makes it important to plan in advance for access to a person’s e–mail accounts during a period of incapacity or after the person’s death.


1A fiduciary may include a guardian, conservator, executor, personal representative, trustee, attorney–in–fact, etc.

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What is Digital Property?

For us to discuss estate planning for digital property, we first need to define digital property.

Digital property includes data, Internet accounts, and other rights in the digital world, including contractual rights and intellectual property rights. Data are the files and information stored and used by computers (such as e–mails, word processing documents, spreadsheets, pictures, audio files, and movies). This data may be stored locally on a computer’s hard drive or on removable media, or data may be stored remotely and accessed over the Internet.

Internet accounts are governed by contracts between an individual and a service provider, such as e–mail accounts, accounts at financial institutions, accounts on shopping Web sites, Web page or blog hosting accounts, social networking accounts, registered domain names, and online video game and virtual world accounts.

Intellectual property rights also can exist in digital property, such as pictures, music, movies, literary works, Web pages, computer code, and other creative works.

With other, traditional forms of property (real estate, stocks and bonds, bank accounts, life insurance, vehicles, personal property, etc.), there are well established procedures and processes to locate it, identify value, and transfer control or ownership upon a person’s incapacity or death. But there are significant differences with digital property, especially with Internet accounts and encrypted electronic data. If a person has not provided a list of all the accounts, passwords, and other key information about digital property, dealing with the person’s incapacity or death becomes more difficult. Failure to plan ahead can make it practically impossible to locate and access certain types of digital property.

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Welcome

Welcome to Digital Passing—a blog covering the intersection between estate planning (planning for a person’s incapacity and death) and the digital world (passwords, online accounts, intellectual property, and other digital property).

The purpose of this blog is to introduce family members, fiduciaries (a guardian, conservator, executor, personal representative, trustee, attorney–in–fact, etc.), and their advisors (a lawyer, accountant, financial advisor, etc.) to the types of digital property that they need to locate and access as they deal with an person’s incapacity or death. Planning in advance is critical for digital property, and it may provide the only way for family members and fiduciaries to access that digital property.

This blog was created by and is maintained by James D. Lamm, a third–generation Minnesota estate planning attorney and a principal in the Trust, Estate & Charitable Planning group at the Gray Plant Mooty law firm in Minneapolis, Minnesota. Jim focuses his practice on estate planning, family business succession planning, probate and trust administration, and charitable giving.

Jim Lamm is a Fellow in The American College of Trust and Estate Counsel (ACTEC). He is licensed to practice law in Minnesota, South Dakota, and North Dakota. Jim works with executives, entrepreneurs, high–net–worth families, and family offices to achieve family goals, pass on family values, and plan for family businesses.

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