Yahoo declared that it was contrary to the terms of service to release emails. It was not until Ellsworth’s father obtained a court ruling in his favour that Yahoo provided copies of all the emails.
In recent years, Rachel Thompson and Nicholas Scandalios made well-publicised endeavours to obtain photos of their late spouses from Apple. A court order was again required before Apple would release the photographs.
These cases show that cloud-stored photographs are, in the eyes of the relevant service providers, information rather than assets. They do not accept that PRs have any relevant legal rights and rely on their terms and conditions.
When you sign up to Apple you agree that “unless otherwise required by law... your account is non-transferable and that any rights to your Apple ID or content within your account terminate upon your death. Upon receipt of a copy of a death certificate your account may be terminated and all content within your account deleted”. Similarly, Microsoft’s service agreement prevents a user from “[transferring] your Microsoft account credentials to another user or entity”.
We therefore strongly recommend considering the fate of cloud-stored photographs (and other information) when performing a health-check of your estate planning.
Any solution can only be a work-around. You can write down your passwords and give them to your PRs before you die so that they can download photographs, but of course that is a security risk (and invariably a breach of terms and conditions). A password manager may be marginally safer, but it does not deal with the contractual breach issue.
But as a slight sweetener, many asset managers provide in-service options, for example Google's Inactive Account Manager, where the account holder nominates an individual who will have limited access to data after the holder’s death.
It is vital that you keep these up to date and if you change your will you should consider whether you need to change your nominees in any of these in-service options.
What do you need to do?
You cannot assume that non-traditional assets will be treated the same way as bank accounts, shares or jewellery. The inchoate nature of our digital lives has not allowed for the same development in process that makes claiming most traditional assets so simple.
A grant to prove your PRs’ entitlement is only useful if there is someone to whom they can furnish the proof, which is not the case with cryptocurrencies. Even when there is a Cerberus, a will may not suffice to obtain access because fundamentally the information is considered by the asset manager to be non-transferrable.