The Digital Afterlife Is a Mess

The Digital Afterlife Is a Mess

This article is part of Future Tense, a collaboration among Arizona State UniversityNew America, and Slate. On Dec. 6, Future Tense will hold a happy hour event in Washington about planning your digital afterlife. For more information and to RSVP, visit the New America website.

Imagine that your beloved brother had just been killed in a car accident, leaving behind not just a grieving (and angry) family, but also dozens of internet accounts, ranging from his Facebook page to his Gmail accounts to his business records. You’ve gone to court, and you’ve received legal authority to clean up your brother’s estate. What rights does that give you to manage his online accounts?

There is, alas, no one right answer. What you can do depends on what actions your brother took before his death, what the online accounts themselves permit, and the laws of the state where your brother lived.

In the past, after a person became incapacitated or died, the legally recognized fiduciary (someone given the power to act on behalf of another) would go to the home of the person who had died and look for paper records of bank accounts, stock holdings, bills to be paid, and business transactions. During that process, they would find old love letters, dirty laundry, and anything else left behind. Laws are clear that this fiduciary has management rights and must act in the best interests of the person who has died.

Today’s world is different. Many of us have chosen to go paperless, so all of our financial statements are delivered electronically; we even file digital tax returns. Our love letters may no longer be written in ink on paper, our reading and listening and viewing interests no longer documented by hardcover books and magazines, record albums, and VCR tapes, and our photos no longer stored in boxes under out beds. In 2013, McAfee released a survey that suggested that on average, we value our digital assets—what we have created, communicated, sent, received, or stored through electronic means—at about $35,000. These assets range from a potentially lucrative domain name to all of those photos we store in the cloud. (In the McAfee survey, the average respondent said that digital “personal memories” were worth about $17,000.)

Collecting all of those records today often begins with accessing the person’s computer, rather than physical file cabinets. You might think then, that your first step should involve accessing your brother’s computer.

But federal and state laws protect against unauthorized access to computers and internet accounts, and internet service providers may prohibit sharing access to data with anyone else through their terms of service agreements, or TOSAs. To protect our privacy on the web, Congress enacted the Stored Communications Act in 1986 (when Mark Zuckerberg was 2 years old) as part of the Electronic Communications Privacy Act. The law prohibits certain providers of public communications services from disclosing the “contents” of our electronic communications without legal authorization, such as a search warrant—or your brother’s permission. (“Contents” includes what is contained in our email messages, although it doesn’t include the user’s name or address, or the date and time the message was sent.) So, even if you have access to your brother’s username and password, it may be a crime to use them. And then there are those TOSAs, the conditions you click through (and most people don’t read) in order to sign up for an internet account. And the TOSAs for many sites warn you against revealing your password. According to Facebook’s Statement of Rights and Responsibilities, you agree that “You will not share your password.” OK, you probably won’t be prosecuted if you use your dead brother’s password to get into his Facebook account—but it is definitely not a risk worth taking.

Some sites have added options to let us plan for management of our accounts when we are no longer able to do so, and maybe your brother took advantage of these services. Facebook now allows you to designate a “Legacy Contact.” Here’s the official explanation:

Once someone lets us know that a person has passed away, we will memorialize the account and the legacy contact will be able to:

– Write a post to display at the top of the memorialized Timeline (for example, to announce a memorial service or share a special message)

– Respond to new friend requests from family members and friends who were not yet connected on Facebook

Similarly, Google offers an Inactive Account Manager. Google users can provide information about a trusted contact who will have access to various Google accounts once the primary user has been inactive for a set period of time. The Google user can specify the period of inactivity before notification is sent and can also indicate to which accounts the trusted contact will have access. Or, if you’d rather not share those accounts, then you can ask Google to delete your account after you go a set amount of time without logging in.

But what if your brother hasn’t designated a Legacy Contact or an Inactive Account Manager? And what about all of those other internet accounts?

Enter the Uniform Fiduciary Access to Digital Assets Act, Revised, which was first proposed in 2015. It is now in effect in more than two-thirds of the states, and it attempts to solve problems with access. RUFADAA allows a fiduciary to manage much of a decedent’s digital property, giving access to many things other than the content of electronic communications (unless this access has been limited by the user or by a court order) and even permitting access to content in certain limited situations.

RUFADAA sets out a four-tiered system of priorities:

  1. If the internet company provides its own digital tool that is distinct from the general terms of service and through which the account holder has named another person to have access to the user’s digital assets or to direct that the company delete the user’s digital assets (think of Facebook’s Legacy Contact option), then these online instructions control the fiduciary’s access.
  2. If the internet company didn’t provide this option, or if the account holder didn’t use the tool, then the person can use a will, trust, or another writing to set out what should happen to the digital assets.
  3. If the user has not provided any direction, either online or through estate planning, then the TOSA for the account controls just what the fiduciary can access.
  4. However, many of these agreements don’t say what happens when the user dies. If there’s nothing else, then RUFADAA can allow the fiduciary access to digital material other than the content of certain electronic communications. So you would be able to go into your brother’s account to find email addresses, for instance, or to look for the date and time that he sent an important email before he died. But you couldn’t look at what the email itself said (or even the subject line, technically).

The website Everplans offers some helpful advice on how to manage email accounts. But hopefully learning about these problems will make you want to take control of this issue before you are too ill (or too dead) to use your computer. Here are a few concrete steps for you to consider.

First, take stock of your own online universe. Make sure you have an inventory of your digital assets, including all accounts and passwords. And be careful about revealing that information to anyone else not just because you are concerned about your privacy and hacking, but also because it might be illegal for someone else to use your password, even with your consent, if the site’s terms of service prevent password sharing. Luckily, online services can help you keep track.

Second, take advantage of the online management tools currently available and sign up for them. If you haven’t yet activated Google’s Inactive Account Manager or set up your Facebook Legacy Contact, it’s time to do so.

Third, consider drafting some estate planning documents to cover your digital assets. Think about whom you would want to serve as a fiduciary who would get access to your online accounts, and think about how much access you want to give that person. There are samples online, including those from the Digital Beyond and Everplans.

It may be a little tedious and a little macabre—no one likes to think about death. And, of course, this is not legal advice. But you’ll be doing your family and friends an enormous favor if you do a little digital estate planning now.

You depend on Slate for sharp, distinctive coverage of the latest developments in politics and culture. Now we need to ask for your support.

Our work is more urgent than ever and is reaching more readers—but online advertising revenues don’t fully cover our costs, and we don’t have print subscribers to help keep us afloat. So we need your help.

If you think Slate’s work matters, become a Slate Plus member. You’ll get exclusive members-only content and a suite of great benefits—and you’ll help secure Slate’s future.

Join Slate Plus

State-by-State Digital Estate Planning Laws

State-by-State Digital Estate Planning Laws

Though most Americans have a substantial amount of “digital property” or “digital assets” (such as email accounts, social media accounts, and blogs), federal legislation regarding digital property does not yet exist.

Most states rely on the particular terms of service or privacy policy of the service that manages the asset (such as Gmail, Facebook, or Tumblr) to determine what should be done with the particular asset when the owner dies.

That said, 28 states have stepped in to create laws that will protect people’s digital assets and give the person’s family the right to access and manage those accounts after the owner has died. Plus, The Uniform Law Commission created the Fiduciary Access to Digital Assets Act, which is aimed to allow executors, trustees, or the person appointed by court (“conservator” or “fiduciary”) complete access to deceased’s digital assets. While it’s not yet the law of the land, it shows there’s some forward momentum and progress regarding this issue.

If your state is not listed below, that means that your state has not yet passed laws to address these issues. As always, it’s a good idea to consult a licensed estate attorney in your state to get a better sense of your state’s laws, and how you can create a digital estate plan in your state.

Alabama

Law: HB 138 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [See the full Bill here]
Status: Signed by the Governor on May 11, 1017; Effective January 1, 2018

Law: HB 108 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [See the full Bill here]
Status: Signed by the Governor on August 2, 1017; Effective October 31, 2017

Law: SB 1413 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications.
Status: This was approved by the Governor and filed with the Secretary of State on May 11, 2016

Arkansas

No legislation.

California

Law: AB-691 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications.
Status: This was approved by the Governor and filed with the Secretary of State on September 24, 2016.

Colorado

Law: SB 16-088 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [See the full Bill here]
Status: This was approved by the Governor and filed with the Secretary of State on April 7, 2016.

Connecticut

Law: SB 262 Public Act No. 05-136
Description: Executors may access email accounts. The state requires a death certificate and documentation of the executor’s appointment before the estate’s representative can see the deceased person’s emails or social networking accounts.
Status: Effective October 1, 2005

Law: HB 345 Fiduciary Access to Digital Assets and Digital Accounts 
Description: From the original synopsis: “Recognizing that an increasing percentage of people’s lives are being conducted online and that this has posed challenges after a person dies or becomes incapacitated, this Act specifically authorizes fiduciaries to access and control the digital assets and digital accounts of an incapacitated person, principal under a personal power of attorney, decedents or settlors, and beneficiaries of trusts.”
Status: Effective August 12, 2014

Law: SB 494, Chapter 740 Florida Fiduciary Access to Digital Assets Act
Description: This law grants fiduciaries legal authority over the deceased’s digital assets and accounts. Here’s the official summary: “Authorizing a user to use an online tool to allow a custodian to disclose to a designated recipient or to prohibit a custodian from disclosing digital assets under certain circumstances; providing procedures for the disclosure of digital assets; authorizing the court to grant a guardian the right to access a ward’s digital assets under certain circumstances.”
Status: Signed into law on March 10, 2016; Effective July 1, 2016

No legislation.

Law: SB2298 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Effective July 1, 2016

Idaho

Law: SB 1303 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read: Statement of Purpose | Full Bill]
Status: Effective July 1, 2016

Illinois

Law: HB 4648 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Effective August 12, 2016

Law: SB 253 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications..
Status: Effective March 23, 2016

No legislation.

No legislation.

Kentucky

No legislation.

Louisiana

No legislation.

No legislation (LD 1177 Maine Uniform Fiduciary Access to Digital Assets Act was deemed “dead” on March 10, 2016)

Maryland

Law: SB239/HB507 Maryland Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications..
Status: Effective October 1, 2016

Massachusetts

No legislation.

Law: HB 5034 The Fiduciary Access To Digital Assets Act
Description: Provides for fiduciary access to digital assets; and to provide for the powers and procedures of the court that has jurisdiction over these matters. Genealogy writer Dick Eastman sums it up best on his blog: “The new law specifically states that all digital assets are bequeathed from one person to the next. It also allows digital information, including social media and website accounts, to be treated like other assets after the owner dies.” [Read the full Bill]
Status: Effective June 27, 2016

Law: Minnesota Statutes Chapter 521A Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Full Bill | Attorney Jim Lamm’s blog post about the law]
Status: Effective August 1, 2016

Mississippi

No legislation (SB 2478 Revised Uniform Fiduciary Access to Digital Assets Act Died in Committee on Feburary 23, 2016)

Missouri

No legislation.

No legislation.

Nebraska

Law: LB 829 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Signed by the Governor on April 19, 2016; Effective January 1, 2017

Law: SB 131
Description: Establishes provisions governing the termination of a decedent’s accounts on electronic mail, social networking, messaging and other web-based services.
Status: Effective October 1, 2013

No legislation.

Proposed law: SB 2527 Uniform Fiduciary Access to Digital Assets Act
Description: Authorizes executor or administrator to take control of online accounts of deceased person. [Read the full Bill]
Date introduced: September 12, 2016
Status: In progress

No legislation.

Law: AB A9910A
Description: Provides for the administration of digital assets; authorizes a user to use an online tool to direct the custodian to disclose or not to disclose some or all of the user’s digital assets, including the content of electronic communications; provides that this article does not impair the rights of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user; provides for a procedure for disclosing digital assets.
Status: Effective September 29, 2016,

Law: SB 805 Fiduciary Access to Digital Assets
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Effective June 30, 2016

Proposed law: HB 1455
Description: A bill for an act to create and enact a new chapter to title 34 of the North Dakota Century Code, relating to internet accounts and workplace privacy of social media accounts.

Status: Failed April 9, 2013
Full text: Click here for full text of the North Dakota law

No legislation.

Name of law: HB 2800
Description: An act relating to probate procedure; authorizing an executor or administrator to have control of certain social networking, micro-blogging or e-mail accounts of the deceased; providing for codification; and providing an effective date. Allows provisions in a will or a formal order to control access. [Read the full Bill]
Status: Effective November 1, 2010
Note: On January 19, 2016 SB 1107 Uniform Fiduciary Access to Digital Assets [Full Text] was introduced to the Oklahoma Legislature and is in progress. Whether this is meant to replace or ammend the previously enacted digital asset legislation remains to be seen.

Proposed law: SB 1554 Revised Uniform Fiduciary Access to Digital Assets Act
Description: “It allows a fiduciary, such as a personal representative, trustee or conservator, to access certain digital content within certain limits. It permits entities that hold electronic data to allow users to specify their wishes in the event they become inactive or when the entity receives a request for information. (If a user specifies, that trumps all other instructions, including a will.) The measure also permits fiduciaries to obtain a catalogue of digital communications, and sets forth a number of protocols for them, to cover a variety of situations, such as: when users consent to disclosure, or refuse, or fail to specify; or when disclosure has been ordered by a court.” [Source: Oregon’s Summary of Legislation, 2016]
Status: Effective January 1, 2017

Proposed Law: SB 518 Revised Uniform Fiduciary Access to Digital Assets Act, Amending Title 20 (Decedents, Estates and Fiduciaries)
Description: On August 23, 2012 HB 2580 [Full text of proposed Bill] was introduced amending Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes providing personal representatives power over decedent account on social networking website, micro-blogging or short message service website or e-mail service website. This appears to not have passed, making SB 518 a more recent attempt for executors and trustees to access digital assets after death [Full text of proposed Bill].
Date introduced: February 20, 2015
Status: This passed the House on November 18, 2015 and was referred to the Judiciary on November 18, 2015. The current status is unknown.

Law: Title 33: Probate practice and procedure, Chapter 33-27: Access to Decedents’ Electronic Mail Accounts Act, Section 33-27-3
Description: Executors may access email accounts. The state may require a death certificate and documentation of the executor’s appointment before the estate’s representative can see the deceased person’s emails or social networking accounts.
Status: Effective May 1, 2007
New Proposed Legislation: On April 29, 2016 HB 8125 Revised Uniform Fiduciary Access To Digital Assets Act was introduced, which appears to amend or replace their current Access to Decedents’ Electronic Mail Accounts Act. It is currently being held for further study.

Law: SB 908 South Carolina Uniform Fiduciary Access To Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Effective June 3, 2016

Law: HB1080 Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Signed by Govenor on March 6, 2017; Effective July 1, 2017.

Tennessee

Law: SB 326 Uniform Fiduciary Access To Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Effective July 1, 2016

Law: SB 1193 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This law authorizes a decedent’s personal representative or trustee to access and manage digital assets and electronic communications. [Read the full Bill]
Status: Signed by the Governor on June 1, 2017; Effective September 1, 2017

No legislation. (Note: HB 383 Uniform Fiduciary Access to Digital Assets Act was introduced on February 18, 2016 and is currently in progress.)

No legislation.

Proposed law: SB 914
Description: Fiduciary access to digital assets. Enables a fiduciary to gain access to the digital accounts and digital assets of the person or estate to whom he owes a fiduciary duty upon making a written request to the custodian of the digital accounts and digitals assets and submitting proof of the fiduciary relationship.
Date introduced: January 7, 2013
Status: Unknown
Full text: Click here for full text of the proposed Virginia law

Law: SB 5029 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This provides a process for a digital asset custodian to disclose digital assetinformation when requested by a fiduciary who needs access to the information to fulfill fiduciary duties. [Read the final Bill]
Status: Effective June 9, 2016

Washington, D.C. (District of Columbia)

No legislation.

No legislation.

Law: AB 695 Revised Uniform Fiduciary Access to Digital Assets Act
Description: This provides a process for a digital asset custodian to disclose digital assetinformation when requested by a fiduciary who needs access to the information to fulfill fiduciary duties. [Read the final Bill | Wisconsin Legislative Council Act Memo]
Status: Effective April 1, 2016

Law: SF0034 Uniform Fiduciary Access to Digital Assets Act
Description: This provides a process for a digital asset custodian to disclose digital assetinformation when requested by a fiduciary who needs access to the information to fulfill fiduciary duties. [Read the final Bill]
Status: Effective July 1, 2016

Though we make every effort to keep this list as up-to-date as possible, there may be information that’s not current. If you’re aware of updates or changes to digital asset legislation in any state, please let us know here.

P.S. You really should try out your own Everplan.

It’s really simple to set up, it’s free to try, and it can make a world of difference for your family if something happens to you. Set up your Everplan now.