A recent case, Ajemian v. Yahoo!, Inc., came to my attention because it involved access to a dearly departed brother’s Yahoo! email account. A recent change to Yahoo!’s terms of service includes the following:
You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted. (Emphasis added by The Shark Free Zone.)
Therefore, siblings, who were administrators of the brother’s estate and despite providing a death certificate, could not even access the content of their brother’s Yahoo! account.
This case highlights the fact that, if any information that is useful to an estate’s executor or administrator, e.g., a username change, bank or utility online statements, or the names of online accounts that the user had were provided, upon proof of a loved one’s death, the Yahoo! account may be frozen and the information not transferred but destroyed. That means that the executor or administrator will have to go through the departed’s mail, papers, or even underwear drawers, to contact the institution and perhaps wait days or weeks for final account information to be provided. Ouch!
Photo: J Krechowicz, Poland
The above is also another reason why I’ve said it before and will keep on saying it: Property powers of attorney should authorize access and control of digital accounts and assets. Equally important, a list of user names and passwords, at least for email and financial accounts, should be provided to your designated executor or one or two loved ones. If you bank and enter into other financial transactions online, such as paying a utility bill, without usernames and passwords your power of attorney agent can’t properly manage your affairs. Arguably, providing the agent under a power of attorney could be construed as “transferring” the rights, but your agent is acting on your behalf, so the transfer is actually what we call a “legal fiction.” But death is death; no fiction that can undo that. So even if you didn’t take care of the matter while you were on Twitter, if you didn’t at least authorize your executor to obtain and use this information, then your family will experience even more emotional angst than necessary after your final tweet.
What was the ruling on the case? It was remanded back down to the court from which it came to make the decision from a state law perspective, since the deceased was a Massachusetts resident. The Court decided that the selection of law that Yahoo! tried to impose – California was improper given the decedent user lived in Massachusetts and that state would have a decided interest in the case.
Maybe this is also another reason for us to be more careful about what we post; it could end up in the hands of a stranger or a loved one who we unduly and harshly criticized. Double ouch!
