What Happens to Your Online Data After You Are Gone?

Q. Our next door neighbor, Joseph, was shoveling snow when he collapsed and died of sudden cardiac arrest at the age of 53. Grief-stricken and shocked, his wife, Jane, not only had to plan a funeral; she also faced the daunting task of figuring out the couple’s online financial life. Unfortunately, she only knew half of his passwords, and it was a real headache that she didn’t need at the time to find out how to access everything else. 
My husband and I are a bit older than them. This was a real eye opener for me. We use online banking, bill pay, Facebook, email, and many other services, and we try to vary our passwords for protection. I would hate to cause a headache for my husband when it comes to our digital assets, should something happen to me. How can I protect the fate of our online life, safely make my passwords available, and additionally make things easier for the loved ones I leave behind? Thanks in advance for your help!
A. To address this issue, because  so much of our lives are spent online, a new category of personal property, known as “digital assets,” has emerged. 
Digital assets include any work, passwords, documents, or possessions stored on a computer and the Internet. They can include photos, videos, emails, music playlists, and even medical records and tax documents. As more financial institutions encourage account owners to sign up for paperless statements, online bill pay, and online access to investment accounts, the list continues to grow.
Why is planning for digital assets so important? Digital accounts and assets are a significant part of the financial lives of many people, and they would have an incomplete estate plan if those assets and accounts were not considered as part of the planning process. In addition, if you don’t carefully consider all accounts and communicate details to permit access to your executor, as you saw for yourself, it can create tremendous headaches for those responsible for dealing with your assets after death.
These are some other reasons why you should plan for digital assets:
  • Many people have extensive arrangements to pay regular bills online or they may have assets online tied to PayPal, e-Bay or Amazon.com. If no one knows about this, bills are likely to go unpaid.
  • People running their own business are likely to store important information on computers. A domain name or a blog also could be valuable, yet it may only be possible to access it via a password. If that password is unavailable when someone dies, what happens to all those things?
  • People accumulate more and more and invest thousands of dollars in digital books, movies, and music. It’s a significant asset that they don’t want to lose.
  • Some members of airline frequent-flier programs might even accumulate a staggering amount of points or miles and die without having spent them. As long as a beneficiary knows the online log-in information of the deceased member, it may be possible for the remaining benefits to be transferred or redeemed. It would be a shame to forego the points a loved one has taken many pricey trips to earn.
Since 2005, nine states have enacted laws that allow for some level of control of digital assets after death, according to the National Conference of State Legislatures. Such legislation is being enacted in part to enable loved ones to gather monetary assets that may have to be passed on, and also preserve posts and pictures from social media pages and make sure they’re not defaced. 
The first state law, in Connecticut, covers only access to email. Others, such as a 2014 Delaware law, are broader, and include not only emails and social media content, but also data, such as audio, video, images, sounds, computer source codes, computer programs, software, and software licenses. 

In Virginia, the state legislature passed a bill in 2013 relating to digital assets, but it only applied to minors, and only affords parents of the deceased minors access to their social media accounts. Recently, Virginia introduced additional legislation to enable an Executor or Administrator (i.e. a Personal Representative) of an estate to gain access to the digital accounts and digital assets of the person or estate to whom he owes a fiduciary duty. This legislation has been passed by the General Assembly, and is awaiting signature from the governor. Assuming the governor passes the legislation, there will be new Virginia law to govern access to digital accounts after a user has died.

However, the new code sections will not apply to financial accounts (online banking,  etc). In addition, access will also require a court order, and will only be available to a person’s Personal Representative (PR), not a trustee or other fiduciary. Also, the PR will only be able to get the identity of the person(s) with whom the deceased communicated, the dates and times of the communication, and the electronic address of the person(s), unless an explicit testamentary provision is included in the deceased person’s documents.

Other states, including Maryland and Florida have followed suit and have introduced proposed legislation about digital assets after death.
Online services are starting to take notice, as well. Even when there are clear instructions in estate planning documents, many social media websites have contracts that protect the privacy of users.  In addition, popular sites and services like Facebook, Gmail, LinkedIn and Twitter have deceased-user policies to provide the family or executor with information needed to access accounts. Below are some examples:
  • Facebook recently introduced a “Legacy Contact” feature that allows users to select another Facebook friend who can look after an account postmortem. The legacy contact can “write a pinned post to share a final message on your behalf or provide information about a memorial service, respond to new friend requests and update your profile picture,” according to the service. That person cannot remove or change past posts, photos and other things shared on your Timeline, read messages you’ve sent to other friends, or remove any of your friends. Facebook also offers a memorialize feature, or you can permanently delete an account. 
  • Twitter also offers an option to deactivate profiles of deceased loved ones.
  • Google’s Inactive Account Manager allows you to tell the service what you’d like to do with your data—deleting it or transferring your account to a family member or friend—after a certain time of inactivity. This includes content from Gmail, Google Plus, Picasa, and YouTube, but it does not mention content purchased on Google Play. In fact, Google Play’s legal terms stipulate that any rights you have to their products may not be transferred or assigned to any third party without authorization.

What happens to digital assets if someone dies without a trust or at least a Will clearly disposing of these assets?

State law decides what happens, which may or may not be what you want. But digital assets such as email, Twitter, and Facebook accounts are so new that most courts have not developed rules for how to distribute them when there are no instructions in the will. In these cases, who knows what will happen to your valuable digital assets?
Protecting your Digital Assets
To protect digital assets, we recommend specifying them in your estate planning documents and specifically giving control over these digital assets to your executor or trustee, who could then take over upon your death. An easier way is to store all of your digital user names and passwords in a secure password safe, such as keepass or lastpass and give your executor/trustee the password and location of the password safe or the means to locate your master password, such as by writing down your master password and putting it in an envelope in your safe deposit box.
Take time today to start planning for your digital assets AND your traditional assets. Now it is a good time to start or possibly update your estate planning. Call one of our offices to make an appointment for a no-cost consultation:

Fairfax Elder Law: 703-691-1888
Fredericksburg Elder Law: 540-479-1435
Rockville Elder Law: 301- 519-804
DC Elder Law: 202-587-2797

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