What Is Digital Estate Planning?
Digital estate planning is estate planning for digital or online assets, such as e-mail, text messages, websites, financial or personal information, and social networking accounts. Digital estate planning is a new field, so there are no federal statutes and only a handful state laws regarding digital assets.
Most rules regarding digital estate planning come from user agreements and the policies of tech companies. Currently, private user agreements with companies like Facebook or Google drive digital estate planning rather than legislative statutes.
Why Do I Want Digital Estate Planning?
Some families want to close digital accounts because they do not want any reminders about the deceased on the Internet. Other families may wish to access and download old photos posted online. Some assets, such as websites, bank accounts, or publishing rights are worth a lot of money, even after the user has passed away.
A few families might want access to personal communications if they suspect foul play with regard to the deceased person's death or if they want to discover why a loved one committed suicide. Occasionally, the intentions of a loved one with regard to their estate may also be revealed in their digital assets if there is a dispute over their last will and testament. Identity theft after a loved one has passed away may also be an issue.
Very often, the only person who knows the passwords necessary to access the digital property is the decedent. Many tech companies refuse to share passwords without a court order, even after the user has passed away.
Proper digital estate planning can prevent unnecessary trials over missing passwords and inaccessible accounts.
How Can I Manage My Digital Estate?
You can write in your will how you want your digital assets disposed. Avoid putting passwords and login information in your will though because wills become public documents after they enter probate.
If you want to give your estate executor access to your digital assets without going through the tech companies, you should write down all the financial websites you use, the login information, and the passwords on a separate document and refer to that document in your will.
However, if the company refuses to allow users to share passwords, the account may be subject to closure without a court order. In a few states though, giving the passwords to an official representative will be exempt from such policies.
Alternatively, you can set up a Digital Asset Protection Trust (DAP Trust) and appoint a trustee to manage your digital estate, even after you have passed away.
How Do Tech Companies Handle Accounts After a User Has Passed Away?
Tech companies differ in how they treat accounts of deceased users. For example:
- Facebook locks and memorializes the user’s profile if anyone notifies Facebook of the user’s death. A user can assign a legacy contact in advance to manage the memorialized page. The legacy contact, however, does not have access to the user’s full Facebook account, and can only access and manage the memorialized page. Alternatively, Facebook will close a user’s account at the request of a close family member.
- Google maintains an "Inactive Account Manager." Although the name does not reveal the feature’s nature, the manger is actually useful in the event the account user passes away. The manager allows the account user, while they are alive, to control what happens to the profile upon death. The user can request the account be closed, a YouTube video be sent to friends, the account password be sent to a specific person, or many other options. Google may also work with close relatives if there are no instructions left regarding a deceased loved one’s account. This may include account closure and providing the contents of the user’s account to the relatives.
- Twitter deactivates the account if an immediate family member or authorized person provides the user’s death certificate and other information for identification. Twitter may also remove the images of a deceased loved one at the request of immediate family members, but they will weigh the request against public interest factors before honoring the request.
- LinkedIn removes deceased members if a person submits the proper form with the correct information.
Are There Any State Laws Regarding Digital Estate Planning?
There are few laws regarding digital estate planning. Although there are no federal laws that directly address digital estate planning, any digital access by anyone other than the user must abide by the Stored Communications Act of 1986, which makes accessing another person’s digital accounts very difficult.
A handful of states have passed laws to help determine what happens to digital assets after death:
- Connecticut – Estate executors can access e-mail accounts, but still need to produce a death certificate and proof of appointment as verification.
- Delaware – Upon written request, estate executors can receive access to all digital accounts and digital assets.
- Idaho – Estate executors can access e-mail, social networking accounts, blogs and text messages unless a will or court order restrains them.
- Indiana – Estate executors have access to e-mail, social networking accounts, blogs and texts messages, but still need to produce a death certificate and proof of appointment as verification.
- Nevada – Estate executors can close digital accounts on behalf of the deceased. However, they cannot obtain account access.
- Oklahoma – Estate executors can access social networking accounts and e-mails, but only if a will or court order gives them permission to do so.
- Rhode Island – Estate executors can access e-mails if a death certificate and proof of representation are produced.
Do I Need an Attorney to Protect My Digital Estate?
Digital estate law is a new concept in estate planning that most people will not have experience in. If you would like assistance in making a will you should contact an estate attorney. Your attorney will be able to listen to your goals for your estate when you die, and help you develop a will to meet those goals.
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