Digital Assets-What Happens to Your Digital Assets when You Die?

What are "digital assets"? In very generic terms, digital assets are any type of personal property which is stored in digital form, such as photographs, documents, financial information, email accounts, business accounts, domain names, blogs, webpages, social media accounts, loyalty program benefits, online storage accounts, online purchasing accounts, online sales accounts, bitcoin and the like. Such information can only be accessed through computer, smartphone, tablet, etc., and is normally password protected. So what happens to this information if you become disabled or when you die? Some accounts are eventually closed for inactivity, but others stay open until directed to be closed by someone having the appropriate authority. It is this question of authority that causes problems for next of kin and fiduciaries.

Several states have enacted laws to address this issue, but other states have not, and even in the states which have laws in place, the laws do not always go far enough. Virginia, for example, addresses a personal representative’s rights to access a decedent’s digital accounts, but such authority is limited to a personal representative of a minor’s estate. Virginia does not yet address digital accounts held by an adult. Virginia defines a "digital account" as "an electronic account maintained, managed, controlled, or operated by an individual in accordance with a terms of service agreement legally executed by such individual . . . ‘Digital account’ excludes accounts . . . to which a financial institution, financial institution holding company, or affiliate or subsidiary of a financial institution is a party."

In addition to the lack of clear statutory guidance in many jurisdictions like Virginia is the issue of which state’s laws apply, because every company which sponsors a digital plan or account is tied to a particular state, which may or may not be the decedent’s domicile. Many companies have themselves put into place rules for accessing the digital information of a decedent, but these rules are also not consistent and continue to frustrate family members and fiduciaries. This article explains some of the established processes and suggests that every estate plan contain a strategy for dealing with digital assets, including the appointment of a "digital executor" to handle these assets.

  • Google (Gmail, YouTube, Google+)

Google has what is called an "Inactive Account Manager," which is a way to either share or delete your account after a set period of inactivity. You set a timeout period, after which time of inactivity on your account, any trusted contacts will be notified, given an option to share data, and your account will be permanently deleted. If you fail to set up your Inactive Account Manager before your passing, members of your family can request the contents of your account. By providing proof of kinship, a death certificate, and possibly a court order (i.e. certificate of qualification on the decedent’s estate), Google will review whether or not to release the contents of your account. Google will not give anyone access to the account, but in some cases, it will release the contents on a data DVD.

  • Yahoo:

Similar to Google, Yahoo may release the contents of an email account on a DVD or on paper, but will not give anyone access to the account. A letter containing the request, a death certificate, and a copy of a document appointing the requesting party as the personal representative or executor of the estate of the deceased are required.

  • Microsoft (Hotmail.com, Outlook.com, Live.com, Windowslive.com, MSN.com):

Microsoft will release contents of emails, attachments, address book and Messenger contact list to the next of kin of a deceased or incapacitated account holder following a short authentication process, but it will not provide any passwords or access to the account. A death certificate or certified document stating the user is incapacitated, a certified document proving kinship and a photocopy of a government issued photo ID of a family member are required.

  • America Online:

AOL will not release the contents of any account to anyone, but it is possible to transfer ownership to another AOL Username already listed on the account. The next of kin can change the payment information online through "My Account Settings," using the deceased person’s Username and Password. AOL Customer Service will provide this information if needed.

  • Apple iCloud (Mac.com, Me.com):

Apple has no right of survivorship, which means that rights to Apple ID or content within an account are non-transferable. Next of kin may provide a death certificate, in which case the account will be terminated and all content will be deleted.

  • Facebook:

Your Facebook account can be handled one of two ways: either your account can be memorialized or it can be deleted. Either option can be chosen by the user before death. For either option, after death a family member needs to fill out an online form with a link to either an obituary or news report confirming death. When an account is memorialized, all sensitive information including contact information and addresses are removed, as well as status updates. The profile settings are changed so that only friends can find the profile and post information to the user’s wall. Login information will be deactivated, preventing anyone from accessing the account.

  • Twitter:

Twitter will not release any passwords or information about an account, but the account can be deactivated with proper documentation. The Username of the deceased user’s Twitter account, a copy of the death certificate, and a copy of a government issued ID, and a signed statement including contact information and relationship to the deceased user is required to request deactivation.

  • Instagram:

Like Facebook, an Instagram account can either be memorialized or deleted. A family member must provide death certificate and proof of authority as a representative of the estate. Memorialized accounts cannot be changed in any way, but followers may share memories on the profile. Instagram does not allow anyone to log into a memorialized account.

Beginning in May, 2012, the U.S. Government started encouraging people to create social media wills in which a person would name an "online executor" to close online accounts, social media profiles, email accounts, etc. after death. However, there is no clear statutory guidance in Virginia regarding a "social media will." Basically the process involves making a list of all of your personal accounts, user names, and passwords and stating how you would like each handled upon your passing. This list should be kept with your original will or trust so it can be found upon your incapacity or death. For your security, this list should not be given to anyone prior to your incapacity or death, but it is important to advise the person you have named as your "online executor" as to where this list can be found. Finally, this list should be reviewed and updated at least every six (6) months because, as we all know, accounts and passwords change regularly. The list is only beneficial to the extent is contains the most relevant and up to date information.

In lieu of making the list discussed previously, there are a few websites sites which can store account information and passwords for you securely. Some of these include passwordbox.com, everplans.com, and planneddeparture.com. These sites are set up to store all passwords to any of your online accounts. You then select a "digital estate executor," who should be a trusted person, to receive access to your accounts upon passing. Once your digital estate executor has contacted the site and provided proof of your passing, all of your passwords will be released to that person, with details on how you want each account handled. Some digital companies, such as "PSN," "Snapchat" and "Tinder," do not have options for account management after passing, so it would be a good idea to leave instructions on how you want those accounts managed. Keep in mind, though, that it could be a violation of the Terms of Service agreement (TOS) for someone else to access your account, even with written consent. So read the various TOS agreement for each company and stay up to date on their policies.

What happens to your social media accounts after you die is something that is usually overlooked because this is a relatively new issue. The law has not yet been fully developed in this area, which adds to the confusion about what to do and how to do it. However, like with anything else, having a plan in place is the key to making things easier on your agent, executor, personal representative, and/or trustee by providing the information that person will need to access and/or close your digital accounts upon incapacity or death. If we can provide any additional information on this issue or assist you in appointing your "online executor," please contact us.

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The Peninsula Center for Estate and Lifelong Planning
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