Retrieving Digital Assets

What to do about Retrieving Digital Assets – Particularly Apple iCloud Stored Information

One often wonders what happens with our social media accounts and digital information, such as photos, after death.  Photographs used to be kept in physical photo albums, but now they are kept on our phones, posted on social media, and/or stored in “the cloud.”  Our social media accounts are used to keep track of milestones, big events, and even the day-to-day of our ordinary lives, by way of photos and videos. But now, instead of looking at a photo album, now a username and password are needed to see these pictures.  What happens to these photos and videos after death?

Each social media/cloud provider has varying rules on what happens to your account after your death. Unfortunately, there is no clear or consistent way of dealing with data after death. Facebook, Twitter, and Google all have different rules and requirements.  Apple, however, has a no survivorship rule when it comes to their iCloud.  Their specifications are also on their website. Apple actually requires a court order which specifies:

  • The name and Apple ID of the deceased person.
  • The name of the next of kin who is requesting access to the decedent’s account.
  • That the decedent was the user of all accounts associated with the Apple ID.
  • That the requestor is the decedent’s legal personal representative, agent, or heir, whose authorization constitutes “lawful consent.”
  • That Apple is ordered by the court to assist in the provision of access to the decedent’s information from the deceased person’s accounts.

If you have a court order with this information, or if you need additional help, you are supposed to reach out to Apple Support. Apple also notes on their website that devices locked with a passcode are protected by passcode encryption.  So, unless the one with the court order knows the device passcode, Apple cannot remove the passcode lock on the device without erasing it. 

Florida has Chapter 740 of the Florida Statutes, is the applicable section for a decedent’s electronic communications and digital assets.  As to digital assets:

740.007 Disclosure of other digital assets of deceased user.—Unless a user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalog of electronic communications sent or received by the user and digital assets of the user, except the content of electronic communications, if the personal representative gives to the custodian:

(1) A written request for disclosure which is in physical or electronic form;

(2) A certified copy of the death certificate of the user;

(3) A certified copy of the letters of administration, the order authorizing a curator or administrator ad litem, the order of summary administration issued pursuant to chapter 735, or other court order; and

(4) If requested by the custodian:

(a) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user’s account;

(b) Evidence linking the account to the user;

(c) An affidavit stating that disclosure of the user’s digital assets is reasonably necessary for the administration of the estate; or

(d) An order of the court finding that:

1. The user had a specific account with the custodian, identifiable by information specified in paragraph (a); or

2. Disclosure of the user’s digital assets is reasonably necessary for the administration of the estate.

Based on Apple’s requirements, and the above-cited provisions, most likely a personal representative would need to be appointed by a Florida Probate Court, by issuing both an order of appointment and letters of administration.  With these in hand, the personal representative could then reach out to Apple to get access to the information that is stored in iCloud.

Even if your Will provides that your beneficiaries can access these accounts, photos, videos, and iCloud, it seems Apple will still require a court order which makes probate necessary.  Knowing the passcode to the device may also be important, and if drafting your Will, you might consider having that important personal information stored away safely with your original document.  So, if you are trying to access a loved one’s iCloud account with Apple, a probate proceeding and certain probate court documents will be needed. 

It is important to consider these issues both in drafting your own documents and as a potential personal representative, when meeting with your trusted probate lawyer