Settling Estate: What Do I Do When Someone Dies?
Settling the estate can be a trying process, particularly for those grieving. By following these practical steps and being aware of state law, you can ease the process for everyone involved. Settling the estate means safeguarding your loved one’s property during the administration process, paying debts and taxes, and distributing the assets of the estate to those who are entitled to receive it.
Note: The following legal and logistical information is most readily applicable to residents of California. However, where California’s laws or procedures differ greatly from those of the majority of other states, we have made an effort to make our out-of-state readers aware of this.
1. Initial Tasks
Handling the estate starts with a few practical tasks:
Determine Who Is the Executor or Trustee
Consult with an attorney if it is unclear who has been appointed by the will or trust.
Arrange for Temporary Care of Minor Children and Other Dependents
Your first task is to set up temporary care for any minor children and other dependents of the person who died. You might need to look into day care, hospice, or pet care services for temporary assistance until a longer-term solution can be found. For information on the legal process, see 3. Minors and Dependent Adults below.
Obtain Certified Copies of the Death Certificate
You will need death certificates for a variety of purposes, so it’s a good idea to have plenty of copies. Read our section about the Death Certificate in Immediate Help for more information.
Look for a Will or Trust
Locate a will, trust, or any other important after-death documents. For tips on locating these documents, see our section on Locating Important Documents in Immediate Help.
Collect the Mail
Collecting the person’s mail protects his or her privacy, but it also serves an important administrative function. The mail will help you identify the person’s property, because account statements and other documents relating to his or her property will arrive by mail. Bills will arrive by mail too, which will help you identify potential creditors.
Paying the Bills
After a death, bills will continue to arrive for expenses incurred during the person’s lifetime. These may include medical bills, credit card statements, utility and cell phone bills, invoices for mortgage payments, tax bills, insurance premiums, and so on. Here are a few tips for how to handle bills:
- Surviving spouses may be personally liable for the person’s debts, depending on state law. If you are a surviving spouse, consult with an attorney about whether and to what extent you should pay your spouse’s bills.
- If you are not the surviving spouse, do not pay bills from your own personal bank accounts. If you do, you may be deemed to have assumed responsibility for paying the debt.
- Legitimate bills should be paid from accounts that belonged to the person, and such payments should be made only by someone who is authorized to make decisions, such as a Trustee or Executor. Forward bills to the Trustee or Executor, or if no one is yet serving as Trustee or Executor, hold the bills temporarily without paying them until someone is appointed to serve.
- It is the job of the Trustee or Executor to identify what bills are legitimate, to fulfill creditor notification requirements, and to accept or reject creditor claims. The Trustee or Executor should consult with legal counsel about completing these tasks, because failure to fulfill the legal requirements could expose the Trustee or Executor to liability.
- If creditors press for payment before a Trustee or Executor has been appointed, let them know that all bills are on hold pending appointment of an authorized legal representative. If the creditor threatens legal action or files a claim, contact a lawyer immediately.
Secure the Residence, Automobiles, and Tangible Property
Lock the person’s residence and car, and allow no one to take tangible personal property that belonged to them. Tangible personal property includes furniture, antiques, artwork, as well as personal effects like clothing, jewelry, and personal documents. If there are people you do not know who have keys to the house, consider changing the locks. If you cannot reliably secure the residence, consider packing up the tangible personal property and moving it to a secure location such as a storage locker. If people you do not know have extra sets of keys to the car, move the car to a locked garage.
Notify Credit Card Companies and Credit Reporting Agencies
Toprotect against fraud, notify credit card companies that the person has passed away, and that no one should be permitted to make additional charges to the credit cards following the date of death. Let them know that the Executor or Trustee intends to close the accounts. Send a letter to each of the three major credit reporting agencies, Equifax, Experian, and Transunion, letting them know that the person has passed away and instructing them that no one should be allowed to use his or her name or social security number to apply for new credit.
Notify the Employer
If the person was employed at the time of death, notify the employer. Arrange for delivery of the final paychecks, and deposit the income checks into a bank account held in the name of the person or the person’s living trust. Ask the employer to identify the benefits provided by the employer to the person, such as health insurance coverage, life insurance, and retirement plans.
Notify Social Security
If the person was receiving social security checks, notify the Social Security Administration immediately. Often the funeral home or service provider will send a notice as a courtesy. Otherwise, call the Administration at the phone number provided on their website www.ssa.gov. Some family members may be eligible to collect a portion of the person’s Social Security benefits. Ask the Administration to provide you with information on survivor benefits, or consult with an attorney.
Notify Veterans Affairs Administration
If the person was a U.S. war veteran, call the federal Department of Veterans Affairs and have any veteran benefit payments stopped. There are cash benefits of $300 to $2,000 to the family members of veterans depending on the type of duty and the situation at death. Also, ask the VA about burial benefits, or visit the VA burial benefits page here. You will need the person’s VA number or service number and active dates of service.
2. Administering and Distributing Assets
How the assets of the person who died are administered depends on whether he or she left a will or a trust. To administer his or her property, you must meet specific legal requirements. Failing to follow the process can result in personal liability for the Trustee or Executor. We strongly recommend that you consult with an attorney who is experienced in trust and estate administration to advise you on the legal requirements. The attorney should be licensed to practice law in the state where the person was residing at the time of death. To find attorneys in your area, look up Legal Counsel on our Local Resources page.
Revocable Living Trust
A revocable living trust, also simply called a living trust, has become a widely used estate-planning tool, partly for the purpose of avoiding probate, which is further discussed below. A trust is an agreement between a “Grantor,” the person who creates the trust and transfers property into the trust, and a “Trustee,” the person who holds the property and administers it for the benefit of “beneficiaries.” When a Grantor sets up a “revocable living trust” for his or her benefit, he or she typically also serves as the initial trustee. After the Grantor dies, the trust becomes irrevocable, and a named successor steps in to serve as trustee. The successor trustee must hold or distribute the trust property for the named beneficiaries and in accordance with the instructions set forth in the trust agreement. The trust administration process occurs privately, for example, without Court involvement or oversight.
What if Property is not in the Trust?
If the person set up a revocable living trust, but his or her property was never transferred into the trust after death, you should consult with an attorney. Depending on the circumstances and state law, such property could potentially be confirmed to be property of the trust. If not, such property will be subject to probate, as discussed below.
Last Will and Testament
If there is no trust, but the person left a will, the assets of the estate must be administered through “probate.” Probate is the Court process for settling the estate of someone who died. A family member must petition to have the will admitted to the Court and ask for an Executor to be appointed. Once the Executor receives “letters of administration,” he or she must fulfill the legal duties set forth under state law (For example file an inventory of assets, notify creditors, and pay debts and taxes.), and after the administrative tasks are completed, the Executor must distribute the estate property in accordance with the instructions in the will and under the supervision of the Court. Probate fees can run into the tens of thousands of dollars, depending on state law, and probate can take one to two years to complete. High fees and long delays are two of the reasons why many people decide to set up revocable living trusts—property in a trust generally is exempt from probate.
No Estate Plan
If the person left no trust and no will, he or she is said to have died “intestate.” An intestate estate is subject to probate, too. Under intestacy, the person’s property must be given to whoever is entitled to receive it under state law. Typically, a surviving spouse and descendants are the first in line to inherit. If the person had no surviving spouse and no living descendants, then his or her parents would generally inherit next, and if parents are no longer alive, siblings and their descendants are typically next in line. The specific rules of intestate succession vary by state law.
Small Estate Administration and Spousal Petitions
In some states, there are exceptions to the probate requirement. If your loved one’s estate is a “small estate” as defined under state law, a simpler process may be available to transfer assets to the beneficiaries. In California, for example, if the estate has no real property with a date-of-death market value of more than $50,000 and the estate has a total value of less than $150,000, the beneficiaries of the property can have the assets transferred to themselves by completing affidavits. Also in California, if the person is survived by a spouse, the surviving spouse can use a spousal petition to take title to property he or she is inheriting, instead of having to conduct a formal probate proceeding.
Joint property, such as real property titled in joint tenancy with right of survivorship or joint bank accounts, transfers automatically to the survivor upon the death of either joint owner. Joint property typically is not subject to probate under state law. If you are the surviving owner, you must complete paperwork to remove the owner who has died from the title. For example, for real property, an affidavit of death of joint tenant must be recorded with the County where the property is located. The affidavit removes the name of the person who died from the property and places it entirely in the name of the surviving owner.
Pay-on-Death Account or a Totten Trust
Pay-on-death (“P.O.D.”) accounts or a Totten trust automatically transfer to the payee upon the death of the owner. Like joint property, these type of accounts bypass probate. You should notify the banks where the person held accounts of his or her death, and provide them a copy of the death certificate. The banks will then contact any beneficiaries directly. If you are the beneficiary, the bank will likely ask you to complete forms to transfer the account to your name.
Life Insurance Policies and Retirement Plans
Life insurance proceeds and retirement plans are paid directly to the beneficiaries named on the policies and plans and are not subject to probate. If the person failed to name beneficiaries, however, the life insurance proceeds and retirement plans will have to be paid to the person’s estate, which could trigger a probate. Contact the institutions holding the life insurance policies and retirement plans, and inform them of the person’s death. The institutions will contact the named beneficiaries directly.
3. Minors and Dependent Adults
Guardian of the Person
If the person who died left minor children, and the other parent is no longer alive, a guardian “of the person” will have to be appointed for the children by the Court. The guardian of the person is the individual who is granted physical custody of the children and is responsible for their care and upbringing until they reach age 18.
Nomination of Guardian by Person Who Died
If the person left a will, check whether the will included a nomination of guardian. A nomination of guardian is the parent’s expressed wish for who should take custody of the children in the event that both parents have died. Courts typically place great weight on the wishes of the parents when appointing a guardian, but keep in mind that the wishes of the parents will not necessarily be determinative. The Court may appoint a different person if the Court believes that doing so would be in the best interest of the children.
Assets of Minors
If both parents have died, their minor children will also likely inherit their property. Minors, however, cannot legally manage their own assets. If the parents left the property to the children in a trust, the Trustee will be in charge of managing the assets for the minor children under the terms of the trust. If there is no trust, the Court will likely have to establish a guardianship “of the estate.” The guardian of the estate is responsible for managing the minor’s assets until age 18.
If the person who died was caring for an elderly parent or another dependent adult, check whether the dependent adult has a general durable power of attorney or a living trust. If so, the adult’s affairs should be handled by his or her agent or trustee. Contact that agent or trustee, and contact the adult’s attorney, and inform them of the person’s death. If there is no power of attorney and no trust, the Court may have to establish a conservatorship for the adult. A conservatorship is similar to a guardianship, except that the subject is an incapacitated adult, instead of a minor child. A conservatorship gives the conservator authority over the incapacitated adult’s physical care and financial matters.
To learn how to establish a guardianship for a minor or a conservatorship for an incapacitated adult, consult with an attorney.
4. Tax Considerations
If you are serving as Trustee or Executor, you should consult with legal counsel and an accountant about whether estate tax returns must be filed. The estate tax is a tax on all property owned by the person at the time of death. In addition, you may include in the estate certain gifts made during life for estate tax purposes.
Federal Estate Tax
In any given year, there is an applicable federal estate tax exemption. The value of the estate that exceeds the exemption is subject to the tax. Under the Tax Relief Act of 2010, the applicable exemption for 2011 was set at $5,000,000, and in 2012, the exemption increased to $5,120,000. The 2011 and 2012 maximum federal estate tax rate is 35%. In 2013, however, the exemption is scheduled to drop down to $1,000,000, and the maximum rate is set to increase to 55%. Anyone whose estate at the time of death has a value in excess of the applicable exemption amount in that year is required to file an estate tax return. You may need to have property appraisals done to determine accurate date-of-death values. In addition, for a married person who passes away in 2011 and 2012 with a surviving spouse, an estate tax return may be filed to preserve the “portability” of the person’s federal estate tax exemption, even if the value of the estate is below the exemption amount. For help deciding whether to file an estate tax return, please consult with an attorney or accountant.
State Estate Taxes
Also ask your attorney or accountant whether the state where the person who died was living has a state-level estate tax. The state-level applicable exemption amount and tax rate may differ from the federal estate tax. A few states, like California, have abolished the state estate tax.
A personal income tax return must be filed for the first part of the last year of the person’s life through the date of death. The surviving spouse may file as married jointly on behalf of both spouses. For the second part of the year, a fiduciary tax return will have to be filed for income earned by the person’s estate or trust after the date of death. For example, if the person owned rental property held in a trust, the trust would have to file an income tax return, reporting rental income for the second part of the year following the date of death. Special rules apply to income earned during life but received only after death. Seek the assistance of an attorney or an accountant to prepare the income tax returns.
Tax ID Number
You’ll need to get a tax ID number for the Estate or Trust in order to file a fiduciary tax return. For more information on how to obtain a tax ID number, visit www.irs.gov, or ask your attorney or accountant.
Capital Gains Tax
Capital gains taxes are based on an appreciation in value. For example, if someone purchased stock in 2002 for $300,000 and then sold it in 2012 for $400,000, there would a capital gain of $100,000. That “capital gain” of $100,000 would be subject to a 15% federal capital gains tax, as well as state capital gains tax. The purchase price of $300,000 in this example is called the “basis” and the sale price of $400,000 is called the “amount realized.”
For property that is inherited, however, the basis is “stepped up” to the full fair market value at the date of death. In the example above, if instead of selling the stock, the owner dies when the stock has a value of $400,000, and the heirs of the person then immediately sell the stock for $400,000, the basis would be stepped up from $300,000 to the $400,000 value on the date of death, and there would be no capital gain. Capital gains tax could be due, however, if the value appreciates between the date of death and the date of sale. If you have inherited property and are considering selling it, consult with a tax professional about whether a capital gains tax could be due.
What, if any, insurance policies of the person who died should be kept in effect following the date of death?
Homeowners and Renters Insurance
You should maintain the homeowners and renters insurance policies so long as the property remains in the Estate or Trust, to protect the Estate and Trust assets in case of property damage or lawsuits. Cancelling the coverage could actually expose the Executor or Trustee to liability for breach of fiduciary duty, if property damage or lawsuits deplete the assets as a result of lapsed insurance coverage. The Executor should inform the insurance company of the death in writing and request that the Estate be added to the policy as a “named insured” as soon as possible in order to secure the same rights as the person who died.
You should consider maintaining the insurance policy on the car if the rates are favorable. Most auto insurance companies will continue to cover the vehicle and the new legal owner at the same rate under the “permissive use” clause of the insurance agreement. Alternatively, if the car will lay idle during the administration period, or if it will be sold, you can consider registering the car for “planned non-operation” with the state DMV and cancelling the insurance policy, to save expenses for the Estate.
Thanks to COBRA (Consolidated Omnibus Budget Reconciliation Act, 1986), if the person who died received employer health insurance, surviving spouses and dependents will be eligible for continued coverage following his or her death, if they were originally covered. You can contact the insurance company or the employer in order to remove the person from coverage, while continuing coverage under the existing policy for qualifying family members.
6. Assets of the Estate
Certain assets raise unique issues that the Executor or Trustee may need to address.
If the personal residence of the person who died was a rental, to save ongoing expenses, the Executor or Trustee may decide to terminate the lease, vacate the premises, and place all of the tangible property in storage until they are distributed. If the person owned his or her own home, check whether the will or trust hands over the residence to anyone. If not, the Executor or Trustee should determine whether any of the residual beneficiaries wish to take ownership of the property, provided there are other equal assets that can be distributed to other beneficiaries.
Alternatively, the Executor or Trustee may sell the property and distribute the net proceeds. A title search should be done to find out whether there are mortgages or liens against the property. If the residence is underwater, the Executor and Trustee would have to decide whether to pursue foreclosure, a deed in lieu of foreclosure, or a short sale as a means of disposing of the property. For assistance with underwater properties, you should seek the advice of an attorney and a realtor.
If the surviving spouse, minor children, or other family members were residing with the person at the time of death, they might have the right to continue living there during the administration of the estate or trust, depending on state law. Consult with an attorney about whether occupants can be allowed to remain in the person’s home and for how long, or whether they will have to move from the premises.
Other Real Estate
If the person who died owned other real estate, check whether there are tenants occupying their property. If so, look for a copy of the lease agreement among his or her papers, and arrange for rental income checks to be sent to the Executor or Trustee. Find out whether the person had hired a property management company, and if so, request a copy of the property management agreement. If the property will be sold, you should consult with an attorney and a realtor as to whether steps should be taken to remove the occupants from the premises before the property is listed for sale.
If there is no trust, the accounts of the person who died should be retitled to the name of the estate. To do so, the bank will likely request from you copies of the death certificate and the letters of administration, as well as the Estate’s tax ID number. You can consolidate cash accounts into a single Estate account for ease of administration.
If the person was the owner of a small business, check the will or trust for instructions as to the disposition of the business. The death of the owner can result in a sudden and steep decline in the business value. To mitigate against potential loss, you can immediately contact any co-owners or senior staff members to arrange for the continuing operation of the business, and to set up a system for collecting income and paying expenses during the administration of the estate or trust. The executor or trustee should decide as quickly as possible, based on the instructions in the will or trust, whether the business will be closed, sold, or liquidated. If the business is put up for sale, an appraiser may be needed to determine the value of the business. If the person was a licensed professional, for example an attorney, architect, dentist, or psychologist, the state may impose special rules regarding the winding up or sale of the business. Consult with an attorney to discuss the legal requirements.
You should identify items specifically entrusted to anyone in the person’s estate plan documents, and secure such items until they are ready to be distributed to the beneficiaries. If there are valuable vehicles, artwork, jewels, or antiques, consider having those items appraised. All remaining items of tangible property are typically distributed equally to the residual beneficiaries—that is in shares of roughly equal value, as the beneficiaries agree among themselves. For example, one way the beneficiaries can divide up the items is to take turns choosing them; perhaps you can draw cards to determine who gets to choose first. Read our blog post about dividing family heirlooms for tips.
Another option you have is to sell the remaining tangible property– for example, in an estate sale. There are many companies that manage such sales in return for a fee or percentage of total sales, or you can conduct one yourself. The net proceeds would then be distributed to the beneficiaries. Look up Estate Liquidation & Moving services on our Local Resources page. You can also make donations of the remaining items to one or more charitable organizations. Listed below are resources for donating different types of items:
- CDs and DVDs
You may be able to sell CDs and DVDs at a local used record store or online. Alternatively, you can try donating items to your local public library or school, or to organizations that are building libraries, as described in this article by Planet Green.
- Computers and Electronics
There are many regional options for recycling obsolete or damaged computers or electronics, or so-called “e-waste.” Some organizations will pick up these items for you. You can search the EPA’s directory for such organizations near you.
- Children’s Toys
New or gently used children’s toys, stuffed animals, or books can be donated to Stuffed Animals for Emergencies (SAFE), an organization that collects items to benefit children during emergency situations such as fire, illness, accidents, neglect, abuse, homelessness, or floods.
- Art Supplies
Items like art supplies, boxes, string, fabric, and paperboard can be donated. Web search “Creative Reuse Center” to locate a center near you where you can donate such miscellaneous items to help teachers, businesses, and artists.
- Wedding Dress
You can donate used wedding dresses to charitable organizations such as Brides Against Breast Cancer, a group that is funding an initiative called Making Memories to help those who are losing the battle with breast cancer.
You will have to determine, based on the person’s will or Trust, who is the intended beneficiary of his or her automobile. To transfer title to the beneficiary, contact your state’s DMV and complete the required paperwork. Be prepared to provide the DMV with a certified copy of the death certificate as well as copies of valid registration papers and insurance coverage. If there is no named beneficiary for the car, and no residual beneficiary wishes to have the car, the Executor or Trustee may decide to donate it rather than trying to sell it. Habitat for Humanity, for one, accepts donated cars, sells them, and uses the funds to help build and secure affordable housing for at-need families.
Similar to batteries and electronics, you should safely dispose of leftover medications. They are generally comprised of a wide variety of chemicals that can be hazardous when combined, and highly environmentally detrimental when they end up in landfills or filter into the water supply. The federal Drug Enforcement Administration recommends taking medications to local take-back centers. To find a take-back center near you, ask your local pharmacy or contact your local water management agency. You can also donate leftover medications to organizations such as the Afya Foundation and Aid for AIDS, which channel unused medications to Third World countries.
Email and Networking Accounts
Consider hiring termination services to terminate the person’s email accounts and social and business networking accounts on websites such as Facebook and LinkedIn. Each company has its own policies as to what happens to online accounts after death, and whether the person’s online personal information or records can be accessed. See 7. Digital Death for more information.
Asset Search Services
Finally, if you think the person who died may have had other unidentified property, you can consider hiring asset search services in order to locate any unknown assets, such as real property or accounts in other states. You can search state databases, or use services like Missing Money to locate unclaimed assets or property.
7. Digital Death
With so much of our lives online, digital property is becoming an increasingly important part of estate planning and settling the estate, just like physical property. When someone dies, their online accounts, including email and social media accounts, will live on unless otherwise dealt with.
Digital Estate Services
The person who died may have stipulated their wishes in their will regarding their digital property. He or she may have also used an online service. Some companies allow you to create a “digital safety deposit box” with all of your account information stored in one place, and a beneficiary listed for each account. Whoever the person named as a “verifier” will be asked to verify his or her death, and then the beneficiaries of the person’s respective accounts will be notified.
If no arrangements regarding digital property were made, or if you cannot find out if they did, you may still be able to access or delete their online accounts. Currently, Gmail and Hotmail will mail the person’s information to the estate holder. Facebook will not grant access to the account, but if you contact them you can request that the person’s profile be taken down or turned into a memorial page.
Only five states – Oklahoma, Idaho, Rhode Island, Indiana, and Connecticut – currently have laws regarding digital property assets, though more are likely on their way. For information on individual state laws where they exist, visit the Digital Estate Resource page. Or for Digital Asset Services, visit our Local Resources page.
What if you suddenly died or became incapacitated? Would your Executor, Power of Attorney, heirs, or family know about the existence of your “invisible” online and web-based accounts, the ones with no statements or paper trail? How about the critical information inside your email accounts or the content on your website or social media accounts? Does anybody know your log in information to these accounts? While your family is planning your funeral and grieving your loss, criminals could be hijacking your Facebook account. Do you know how to protect your “information afterlife”?
- Provide for the safe transference of digital information to your family and authorized representatives.
- Account for digital assets that might be overlooked by your estate.
- Protect your information afterlife from unauthorized access by identity thieves and other digital mischief-makers.
Creating Your Digital Estate Plan is only $9.99 and is essential for
- Prudent baby boomers who understand the Digital Age poses challenges for planning their estate
- Adult children of senior citizens who desire to be well-informed about comprehensive estate planning
- Members of the financial and legal community responsible for the estate planning of others
- Digital natives and millennials with assets, accounts, and information stored on the web
- Professional Organizers who want to extend value-added benefits to their clients
Available as a PDF, Creating Your Digital Estate Plan is the best $9.99 you’ll ever spend. Loaded with critical cutting-edge information, it also includes a link to a simple, customizable Digital Estate Plan form so you can make your own, personalized Digital Estate Plan.
Tech tips for people who are going to die (someday)
My dad died in 2011. He was an old school techie from back in the mainframe days: a maker type with a basement full of tools, an office full of new and old computers, and a house full of complex systems that only he fully understood. The house, his whole life really, was designed to run with a minimum of human interaction. He was lifehacked up the wazoo.
I’ve been reverse-engineering some of these inscrutable systems over the past few years, and hacking away at some other ones. It can be hard to talk about death and loss, but it’s easy to talk about problem-solving.
I’m the executrix which sounds risqué but just means I’m a female person who has been named in a will to serve as the estate’s representative. The term is ridiculous, I am stuck with it. I’ve enjoyed this job, I like to tinker and fix things, just like he did.
For just this one time, please be normal
My dad had a will. Even if you’re transhumanist or think you’ll live forever, it’s a good idea to have a plan for the world without you. Basic stuff: a will; durable power of attorney; healthcare proxy; and a way for your loved ones to access (or not) your things, both material and digital.
If we do not discuss it, are we not doomed to repeat the mistakes of Western death culture of the last 75 years? — Caitlin Doughty
In short: you should get your shit together. Have these conversations before you need to. Sure it’s awkward, but so is the rest of life.
Self-maintaining house dystopia
My dad’s house worked for my dad. Mostly. Ray Bradbury wrote about a future-world house that had a life after its occupants’ deaths. You might have read it.
The house was an altar with ten thousand attendants…. But the gods had gone away, and the ritual of the religion continued senselessly, uselessly.
Bradbury’s personal house was demolished intentionally in some sort of final irony. My dad’s retirement home was not quite so high tech but it was designed to provide a certain level of creature comforts with minimal inputs from him. Set it and forget it. An X-10 system turned most of the lights on and off on a schedule. Some of this was pretty straightforward “Turn on the porch lights after dark.” and some was a bit more esoteric “Turn off the office lights at 10 pm so that I’ll know it’s time for bed.” He knew the ruleset. I did not. I’d be working on an article or reading a book and suddenly be plunged into total darkness. I’d poke at some wall switches that would sometimes turn the lights back on.
The system was controlled by a laptop. The laptop died. I removed the hard drive to get at the config files. This project went on a lengthy To Do list and never rose to the top. The lights kept turning on and off. Over time their schedules got out of sync. The driveway lights would stay on for days. The porch lights would never come on, or turn on at 6:15 pm and then off at 6:27. Sometimes they’d just blink on and off and we’d be all “Did you see that?” My sister and I kept lists, tried to discern patterns. I pulled the switches off the walls, only to find that they were just stuck on with tape, with no actual wires underneath. Somewhere in some wall there was a transmitter sending out signals that only the lights could hear.
The x-10 directed certain power outlets in the house including the one powering the driveway light. It also controlled a few humidifiers and dehumidifiers as well as the central vacuuming system in the basement wood shop. I don’t know why you’d need a vacuum on an x-10 system. I woke once in the middle of the night feeling like the house was a spaceship mid-liftoff. It was only the whoomp and the screeching of the all-basement shop vac, come to life and sucking up non-existent dust. I went down in my pajamas to turn it off.
Meeting your makers
My dad had a fixit guy who, like all the other guys in his life, I knew by a last name that I had assumed was his first name. Part employee and part friend, Webster would take my dad’s verbal schematics and turn them into plumbing and electrical structures. I’d run into Webster in town and offhandedly mention that there was a weird fuzz growing in the toilets. He’d explain that they had warm water running in them so that water wouldn’t condense on the outside of the tank during the summertime. This is a thing that old house owners know, apparently.
What else didn’t I know to ask about?
Webster had installed the hardware for the lighting system but didn’t really understand how it worked. “Your dad really liked things complicated!” he’d say and laugh. He’d say my dad wouldn’t care if his car was in pieces on the garage floor 75% of the time as long as every time he drove it, it ran like a top. It was from my dad that I first heard a smoothly-operating machine called “sexy” (which didn’t always translate) and learned to appreciate the beauty of well-designed systems.
A few months into this slow-motion hackathon, we were celebrating my birthday. Friends put spitting smokey sparklers on cupcakes, trying to be festive. A disembodied voice from the ceiling started booming “FIRE! FIRE! FIRE!” which, as it happens, is a line from the Bradbury story. As we extinguished the sparklers and I scrambled to figure out how to stop the yelling, the phone started ringing. A man’s voice at the other end asked me for a password. This is how I learned that the house had an alarm system.
The alarm company was local. They’d known my dad, and they patiently stepped me through a series of password hints until I figured it out. The alarm got shut off; we didn’t have to explain it all to the fire department.
We finally called some friends of Webster’s, Killer and Moose, real names unknown, to track down the undead transponder in the wall. They used some high tech electricity-finding tool that I immediately wanted to own. The transponder was replaced with a switch to turn the lights on and off by hand. Inelegant, but it always worked. I had to tell myself when it was time for bed.
Social engineering & future-proofing
There’s a lot of grunt work that needs to be done after a death. Magazine subscriptions need to be stopped. Home services like lawn care need to be curtailed or amended. Maintenance schedules need to be deduced from calendar entries or handwritten notes. A lot of this is just simple phone calls or emails. Some of it is not.
The cable company, when called, wouldn’t let me downgrade my dad’s service without receiving a faxed copy of the death certificate and a letter outlining my executrixship. They insisted on me changing the account into my name, pronto. I hung up. Their online chat service, however, would let “Tom” do anything he wanted as long as he had the account number and the eminently guessable-by-me password that was the same as the alarm system’s. This was a reproducible result. Using my dad’s Google document with the usernames and passwords of all of his major accounts, I got a lot of things accomplished without having to speak to or see a real person.
Your moral compass might vary, mine was totally okay playing zombie games with the cable company. And I knew my father would have appreciated my finding new zero-human-interaction ways of getting things done, especially his things. That’s good hacking.
Sex, drugs, and terms of service
You should know that for unattended deaths the cops will show up and remove any prescription drugs stronger than Advil and they will not return them. If you are a newly-bereaved family member looking for something in the medicine cabinet to take the edge off, you’ll be out of luck.
Social network accounts, domain name registrations, email accounts… are “yours” by license only. When you die, the contract is over and the business that administers the account controls what happens to it. —Nolo
I took over my dad’s Apple ID because I wanted his apps. There may have been something about not doing this in Apple’s Terms of Service but I didn’t read them, and neither did you. I still use his iPad. It has all the bookmarks that he’d been using for over a decade. I was somewhat curious about the last websites that he’d visited.
I will tell you truthfully that I did not look into the bookmarks folder labeled whatever innocuous label 71 year old men put on their dirty pictures once I discerned what it was (future executrixies: mine is labeled taxes). My personal feeling is that it’s impossible to be embarrassed when you’re dead, but if you don’t share this view, there are technological solutions to your social concerns. Find them before you need them.
Terminal commands: never trust the internet
We did the usual thing and had a page at the funeral home’s website where people could sign a guestbook. One of my dad’s old colleagues from Data General was the first to alert us that someone was scraping emails from the guestbook and sending phishing emails. Really? We notified the funeral home and suggested that they rejigger their condolences pages which they did.
We encouraged people to upload photos and stories to a website specifically designed for digital memorials. The site promised the content would stay up forever. I even got a welcome email from their support team saying so.
I am part of the team at 1000memories and wanted to write and thank you for creating a page for your father Tom, it will always be available for you here: http://1000memories.com/tom-west
Their blog post “What is forever?” is now only accessible via the Internet Archive (as is his original obit). The photos are still there on the server but the old URLs are broken. I didn’t think they really meant it, I know the weasel word drill pretty well, but it was just another “What the fuck, internet?” moment in this lengthy process. I talked to an engineer at the now-acquired company who walked me through downloading a zip file of the site’s content that they prepared for me and now I just host it myself. Probably should have done that to begin with, trusted my own skills.
My dad’s Twitter account was hacked (darn those simple passwords) and we got messages from beyond the grave. His photos on Flickr, hundreds of scanned pictures and slides covering nearly all of his life—pictures of me and my sister, pictures of a Japanese computer show from 1980, pictures of the Smithsonian Astrophysical Observatory—went away when we stopped paying for the account (a thing on the nearly-endless To Do list) and then came back when Flickr changed their pricing scheme again to make the account free. With a terabyte of free space “forever” I think we’ll just leave them there. Yahoo’s terms of service indicate that there are no rights of survivorship to their accounts. Technically enforceable, realistically ignored.
Facebook, which my dad never used, actually has a process for changing deceased users’ pages into memorial pages and I wonder if other sites and services will ever follow suit?
For three days after death hair and fingernails continue to grow but phone calls taper off. —Johnny Carson
The phone still occasionally rings at the house. There’s an outgoing message telling people to call my sister. People still leave messages: warranty people; scam-selling people; raffle ticket people. I only answer it if I am in the mood for an argument.
The digital legacy of most people ends at or near their death. Anything you add to the mix post-mortem can, thanks to Google’s recency algorithm, become a highly-findable relevant-seeming bit of information. I don’t talk smack about my dad on my blog or elsewhere, but I will show up on the comments sections of other blogs that do. Despite the appeal of tell-all essay writing, I keep most of his secrets to myself.
I work doing a lot of things nowadays, mostly in technology. One of my workplaces is moving to an Agile software development process where working software is prioritized over comprehensive documentation. It’s a lot more fun to build and refine complicated systems than to outline and explain to other people how they work, I get that. But if anyone but you, anyone you care about, is going to be using your systems ever, a certain amount of documentation can be a great gift to those who manage your afterlife life.
Sensible Legislation on Digital Assets
This following article titled “In Support of Sensible Legislation on Digital Assets” is featured in the October 2014 issue of the San Fernando Valley Bar Association‘s Valley Lawyer Magazine (view pdf):
For the past ten or so years, new articles have abounded regarding the difﬁculty in accessing the digital records of the dearly departed. Famous examples include:
- Justin Ellsworth, the U.S. Marine who was killed while serving in Fallujah, and his father’s desperate pleas to access his Yahoo account, which were denied.
- Karen Williams, whose 22-year-old son was killed in a motorcycle accident, and her desire to access his Facebook account, which was also refused.
Both parents were faced with bureaucratic roadblocks during a time when emotions were already being pushed to their limits.
The problems associated with digital records are exacerbated by our desire to “go green.” No matter how the picture is painted, it seems as though people of all generations are eschewing traditional paper communications for digital. In fact, many companies are now making email the default method of communication and will charge a fee for communication by mail. While there are many beneﬁts to this method of communication and storage of information, there are just as many pitfalls. Primarily, if you have not provided your next of kin the username and password for each digital account you own, it may be impossible for anyone else to secure access to that account.
Upon your death, someone else will be left in charge of your estate and will have to make sense of your digital assets notwithstanding their grief at your passing. Calls to email service providers will be met with roadblocks since the owner of the account is no longer around. The service provider will consistently reference the end-user license agreement that is between the provider and the owner, citing statements that those agreements are designed to protect the integrity of their accounts and insure privacy. There is nothing that can be done and it may be months, years and potentially never before all of the digital information is recreated.
A person’s digital information is just like any other asset that needs to be administered correctly on incapacitation or death. The time has come where personal representatives, trustees, and agents acting under a power of attorney can access such digital assets with greater ease and less red tape. According to a 2011 Census Bureau report (pdf), more than three-quarters of all Americans owned a computer. That number increased to nearly ninety percent of all Americans with a bachelor’s degree or higher. A quick look around your room will likely produce a computer, a tablet, laptop, cell phone, or perhaps all three. All of those electronic devices likely hold at least one component that can be characterized as a digital asset (e.g., email, pictures, books, apps, etc.). Individually or in combination with traditional assets, those digital assets have the potential to cause a signiﬁcant impact on one’s estate, both in terms of valuation issues and administrative logistical issues.
Delaware has taken the ﬁrst major step forward to address some of those issues. On August 12, 2014, Delaware Governor Jack Markell signed HB 345 into law, more formally known as “The Fiduciary Access to Digital Assets and Digital Accounts Act.” The law, which will go into effect on January 1, 2015, is the ﬁrst comprehensive law that provides access to a person’s digital estate following death. The Act is a legislative response to the fast-growing problem of the inability to retrieve information from email accounts, social media accounts, business records and other digitized accounts following a person’s death.
Some states have started to address these issues. Narrow statutes have been enacted in a handful of states but they only address email accounts not social media or other internet-based accounts and are relatively restrictive, limited to turning over copies of emails, but not providing actual access to the account. In Delaware, however, if a person dies and is a resident of Delaware at the time of death, all companies are obligated to provide the username, login and password information to the estate representative. The company would be able to withhold this information only if they were directed that the account not be accessible in the event of death or incapacity.
The Act provides authority to a decedent’s personal representative, an agent authorized under a power of attorney or a trustee of a trust. The representative would essentially step into the shoes of the deceased or disabled account holder and would have all of the powers, rights and responsibilities the account holder had.
Following proof of death or disability and appropriate appointment of authority, the custodian of the account is obligated to turn over all username, password and any other relevant information necessary to fully access the account. Failure to do so could result in court orders and potential liability for damages to the estate.
California has the opportunity to improve upon the statute already passed in Delaware by addressing some of the shortfalls that Delaware’s HB345 does not address. Legislation is currently pending in California on this issue. On January 9, 2014, Senator Joel Anderson introduced SB 849, proposed legislation in California to address the same subject matter as Delaware’s HB345. The proposed legislation was amended on April 21, 2014 and the ﬁrst hearing on the matter was held on May 6, 2014 with testimony being taken. If passed, the new legislation would expand California Probate Code §9650 to require that electronic communication services or remote computer services provide a decedent’s personal representative access to the decedent’s account.
At ﬁrst blush, this proposed legislation is much more restrictive than the Delaware law, since it may be interpreted to only address email accounts. It is essential that any proposed legislation cover a much more expansive group of digital assets. Email is just the tip of the iceberg.
There are other digital assets, some of which may hold signiﬁcant monetary value, which also must be addressed. For example, self-published authors are using the web and cloud storage as a means by which to create, preserve and distribute their works. California’s legislature should adopt them ore expansive deﬁnition of digital assets as proposed by the Uniform Law Commission: “a record that is electronic,” with record meaning “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.” This would not only include email, but also encompass a broader spectrum of digital assets.
Secondarily, the proposed California legislation only gives authority to a personal representative appointed by the court, which means that agents acting under a power of attorney or trustees acting outside of the oversight of the Probate Court are not covered. The expansion of the breadth of digital assets covered and the persons entitled to the information following disability or death are crucial for any proposed legislation to adequately address the issues arising from the expanding realm of digital assets. On a positive note, California’s proposed legislation does deal with an issue relating to the disclosure liability of the service providers. The Electronic Communications Privacy Act and the Stored Communications Act regulates the disclosure and transmission of digital assets. While these Acts were initially intended to prevent unauthorized wiretapping or disclosure of information without the user’s consent, it has been interpreted much more broadly, thereby potentially exposing a service provider to liability for disclosure to anyone other than the registered owner.
The proposed California legislation provides indemnity for the service providers who comply with an order to release information to a personal representative. It will remain to be seen if this will provide enough incentive for service providers to comply with the court’s order or whether the federal government will prosecute these types of cases in the ﬁrst instance.
It is hoped that the ultimate law passed in California will be more expansive both in terms of coverage and in authority granted, but still maintain the additional protections of liability indemniﬁcation. What should be clear though is that these new laws are important and are deﬁnitely needed in this technological age. Digital assets are not going away and these laws are designed to make administration of the assets easier. The days of maintaining business records, check registers, bank accounts, photo albums, and other communications through traditional pen and paper are dwindling; computers are becoming our ﬁling cabinets. Storage, back-ups and original works–art, short stories, novels, biographies–are being digitized. Now it is up to us to incorporate those digitized assets into our overall estate plan, addressing both concerns of disability and death.