The administration of an estate of a decedent requires a personal representative to identify and gain access to their property. Unlike personal property, real estate, and even financial accounts, electronic accounts of decedents can present special challenges for survivors to access. Typically, a request must be sent the custodian of the electronic records who will request a court order. In the case of In re the Estate of Serrano, the Surrogate’s Court was asked to issue a court order directing Google to allow a decedent’s surviving spouse to access the decedent’s Google accounts.
The petitioner’s spouse died. The petitioner wanted to gain access to the decedent’s Google accounts, including his Google email, contacts, and calendar. The petitioner’s stated purpose was to let the decedents friends know of his passing and to close out any unfinished business. The petitioner requested access to the accounts from Google. Google responded by asking for a court order. The petitioner filed an amended affidavit with the Surrogate’s Court requesting authority to access his deceased spouse’s Google’s accounts.
Pursuant to recently enacted article 13-A of the Estates, Powers and Trusts Law, the custodian of electronic records, here Google, “shall disclose” to the personal representative of the decedent’s estate a catalogue of electronic communications sent or received by a deceased user upon the custodian’s receipt from the representative of a written request for disclosure, along with a copy of the account holder’s death certificate and a certified copy of the letter of appointment as fiduciary or a small-estate certificate. EPTL 13-A-3.2
EPTL 13-A defines the term “catalogue of electronic communications” as “information that identifies each person with which a user has had an electronic communication, the time and date of the communication, and the electronic address of the person.”
With the foregoing statutory provisions in mind, the Surrogate’s Court found that the disclosure requested by the petitioner was warranted and directed Google to make it. The court explained that “disclosure of the non-content information is permitted, if not mandated, by EPTL 13-A and does not violate (the governing federal privacy law).”
With respect to the fiduciary’s request to access the contents of the decedent’s Google e-mail account (the actual text of the e-mail messages), the court reached a different result, noting that “authority to request from Google disclosure of the content of the decedent’s email communications – to the extent that (the fiduciary) requests such authority – is denied without prejudice to an application . . . , on notice to Google, establishing that disclosure of that electronic information is reasonably necessary for the administration of the estate.” In other words, if the petitioner returns to court and presents evidence that accessing the actual test of the email messages is necessary for the administration of the decedent’s estate, the court would reverse it’s decision with respect to the email.