In today’s digital age, the bulk of our lives seems to exist online or in other electronic formats. But the law has not caught up with that reality. While a few states have enacted laws protecting digital property and a family’s right to access it after a loved one dies, most states rely on the terms and conditions set forth by the managing service (such as Gmail or Facebook). It is safe to assume that not everyone reads the fine print, which means that we typically have no control or knowledge of what happens to our assets after we are gone.
Indiana is one example of a state that has addressed these issues. Under Indiana law, estate executors may access the deceased’s email, social networking and blogging accounts, as well as his or her text messages. The state requires a death certificate and documentation of the executor’s appointment before granting access to these accounts. While Illinois probate law does not expressly account for digital property, residents may take it upon themselves to protect these assets.
The first step is taking inventory of your digital assets. In addition to email and social media accounts, this might include online banking and utility accounts or insurance plans. You will need an accessible list of usernames and passwords, perhaps stored in a safety deposit box. (Remember that the terms of a will become public, so it is inadvisable to include information that will enable unwanted account access.)
You might be surprised at the extent of your digital life. Other digital assets and accounts might include:
- Pictures (e.g., Instagram) and video (e.g., (YouTube);
- Document accounts and files (e.g., Google docs and Word/Excel);
- Websites and domain names;
- Music (e.g., iTunes) and books (e.g., Kindle);
- Shopping accounts (e.g., Amazon);
- Bill payment services (e.g., PayPal); and
- The physical devices (e.g., laptops and smartphones).
Next, consider who you want to access and control these accounts. Ultimately, this is a personal decision, but here are a few points to keep in mind:
- Who can you trust to preserve your online legacy according to your wishes? This might be important to someone who maintained an active social media presence, for example;
- Individual service providers like Google and Facebook provide afterlife solutions. It might be worth exploring these options when creating your digital estate plan; and
- Identity theft is just as much a problem after death as it is during life. Be sure that whoever has access to your online accounts will protect your privacy.
Once you have taken inventory of your digital assets and decided on a caretaker, the final step is to leave instructions in a will or trust. Creating an estate plan – digital or otherwise – is an important process and does not have to be undertaken alone.