Who inherits your iTunes library?

Who inherits your iTunes library?

Many of us will accumulate vast libraries of digital books and music over the course of our lifetimes. But when we die, our collections of words and music may expire with us.

Someone who owned 10,000 hardcover books and the same number of vinyl records could bequeath them to descendants, but legal experts say passing on iTunes and Kindle libraries would be much more complicated.

And one’s heirs stand to lose huge sums of money. “I find it hard to imagine a situation where a family would be OK with losing a collection of 10,000 books and songs,” says Evan Carroll, co-author of “Your Digital Afterlife.” “Legally dividing one account among several heirs would also be extremely difficult.”

Part of the problem is that with digital content, one doesn’t have the same rights as with print books and CDs. Customers own a license to use the digital files — but they don’t actually own them.

Apple AAPL, +0.79% and Amazon.com AMZN, +0.98% grant “nontransferable” rights to use content, so if you buy the complete works of the Beatles on iTunes, you cannot give the “White Album” to your son and “Abbey Road” to your daughter.

According to Amazon’s terms of use, “You do not acquire any ownership rights in the software or music content.” Apple limits the use of digital files to Apple devices used by the account holder.

“That account is an asset and something of value,” says Deirdre R. Wheatley-Liss, an estate-planning attorney at Fein, Such, Kahn & Shepard in Parsippany, N.J.

But can it be passed on to one’s heirs?

Most digital content exists in a legal black hole. “The law is light years away from catching up with the types of assets we have in the 21st Century,” says Wheatley-Liss. In recent years, Connecticut, Rhode Island, Indiana, Oklahoma and Idaho passed laws to allow executors and relatives access to email and social networking accounts of those who’ve died, but the regulations don’t cover digital files purchased.

Apple and Amazon did not respond to requests for comment.

There are still few legal and practical ways to inherit e-books and digital music, experts say. And at least one lawyer has a plan to capitalize on what may become be a burgeoning market. David Goldman, a lawyer in Jacksonville, says he will next month launch software, DapTrust, to help estate planners create a legal trust for their clients’ online accounts that hold music, e-books and movies. “With traditional estate planning and wills, there’s no way to give the right to someone to access this kind of information after you’re gone,” he says.

Here’s how it works: Goldman will sell his software for $150 directly to estate planners to store and manage digital accounts and passwords. And, while there are other online safe-deposit boxes like AssetLock and ExecutorSource that already do that, Goldman says his software contains instructions to create a legal trust for accounts. “Having access to digital content and having the legal right to use it are two totally different things,” he says.

The simpler alternative is to just use your loved one’s devices and accounts after they’re gone — as long as you have the right passwords.


Chester Jankowski, a New York-based technology consultant, says he’d look for a way to get around the licensing code written into his 15,000 digital files. “Anyone who was tech-savvy could probably find a way to transfer those files onto their computer — without ending up in Guantanamo,” he says. But experts say there should be an easier solution, and a way such content can be transferred to another’s account or divided between several people.“We need to reform and update intellectual-property law,” says Dazza Greenwood, lecturer and researcher at Massachusetts Institute of Technology’s Media Lab.

Technology pros say the need for such reform is only going to become more pressing. “A significant portion of our assets is now digital,” Carroll says. U.S. consumers spend nearly $30 on e-books and MP3 files every month, or $360 a year, according to e-commerce company Bango. Apple alone has sold 300 million iPods and 84 million iPads since their launches. Amazon doesn’t release sales figures for the Kindle Fire, but analysts estimate it has nearly a quarter of the U.S. tablet market.

What Happens to Your Digital Estate After You Die?

What Happens to Your Digital Estate After You Die?

Ever wonder what happens to your social media accounts, email, online texts and other digital content when you die? Do they simply expire, leaving nothing behind but digital dust? Or can you authorize someone to take them over after you pass on? And if so, what powers would such a person possess?

In response to such quandaries, tech giants Facebook and Google have created systems to deal with death—such as suspending inactive accounts, and creating online memorials. But these steps only address part of the problem.

This novel issue was recently confronted by the Delaware Legislature, which became the first state to pass a uniform statutory scheme granting fiduciary trustees full access to a decedent’s online accounts and digital content, just as they would with more tangible assets. If this trend continues, more people may be able to confidently plan for the disbursement of their digital estate.

Avoiding Digital Death

Left unchecked, social media and online accounts may expire with the decedent. This phenomenon is commonly referred to as “digital death.”

Digital death can be emotionally devastating: The permanent loss of a loved one’s intimate thoughts and feelings can exacerbate the grieving process. Social media sites like Facebook and MySpace also routinely restrict account sharing in their terms of use.

But digital death can also have financial repercussions, as digital assets can have real value. A 2011 survey by McAfee found American consumers valued their digital assets at an average of $55,000. Such assets include digital photos, digital music, client lists, domain names, social media accounts, online manuscripts, blogs, email accounts, computer code, online gaming avatars and more.

Delaware Grants Fiduciaries Full Access to Digital Assets

In an effort to provide a workable framework by which to administer one’s digital estate, Delaware recently passed the Fiduciary Access to Digital Assets and Digital Accounts Act, 12 Del. C. Section 5001, et seq., in August.

What makes the act so unique is that it is the first adoption of the Uniform Fiduciary Access to Digital Assets Act (UFADAA), drafted by the Uniform Law Commission (ULC), a nonprofit group that lobbies to enact model legislation.

According to the ULC, the UFADAA solves the digital estate problem by using the concept of “media neutrality.” This means if a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset. The UFADAA also defers to an account holder’s privacy choices as expressed in a document (like a will or trust), or online by an affirmative act separate from a general terms-of-service agreement. Thus, an account holder’s desire to keep certain assets private will be honored by the UFADAA.

One reason the UFADAA is so important is because current federal legislation regarding access to digital assets is hidden in the Stored Communications Act (SCA) and the Computer Fraud and Abuse Act (CFAA)—both passed in 1986, with only minor revisions since then. Notably, the SCA broadly prohibits an “electronic communications service” (like an email service or social network) from disclosing the “contents of a communication” to parties other than the sender or recipient. The CFAA imposes criminal penalties (or civil liability) for “unauthorized access” to computer hardware, devices, and stored data.

To address this concern, the act states a “fiduciary with authority over digital assets or digital accounts of an account holder … shall have the same access as the account holder, and is deemed to (1) have the lawful consent of the account holder and (2) be an authorized user under all applicable state and federal law and regulations and any end user license agreement.”

Despite its well-intentioned goals, detractors like Jim Halpert, an attorney with DLA Piper and director of the State Privacy and Security Coalition, still oppose the act. “This law takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased,” Halpert told Ars Technica. This includes highly confidential communications to decedents from third parties—like doctors, psychiatrists and clergy—who would not expect an executor to review the communications. Halpert also claims it will cause confusion with federal law.

The act is set to take effect Jan. 1, 2015.

Other States’ Approaches to Divesting Digital Assets

Delaware was not the first state to address digital assets. In 2005, Connecticut passed a narrow law giving access to email accounts for deceased residents. Since then, Rhode Island, Idaho, Indiana, Oklahoma, Nevada and Virginia have all passed legislation providing varying degrees of access to digital accounts.

Bills are also pending in a dozen other states, yet all but one has failed to pass. In Pennsylvania, HB 2580—a fourth-generation bill to allow access unless it was restricted by will or court order—has been pending since August 2012.

Implications: Planning for Your Digital Estate

Digital assets have largely replaced tangible ones in our modern world. Yet the laws governing access to these assets remain outdated and inconsistent.

Although a form of personal property and part of a decedent’s estate, commentators have observed that rights regarding digital assets are intertwined in a complex web of federal, privacy, copyright, intellectual property and state law. The result is fiduciaries are often left with little authority or guidance in collecting, distributing and settling a digital estate. And the problem may be more widespread than previously understood. According to a March 2012 article in Technorati, 30 million Facebook accounts belong to dead people.

Current federal law and the law of most states fail even to recognize a fiduciary as possessing authority over digital assets. And until more jurisdictions adopt the UFADAA, this lack of uniformity will only continue.

When a person dies (or is incapacitated) his or her fiduciaries and family members face particular challenges when administering his or her digital estate. After first identifying which digital property is significant, or has value, other obstacles include having to deal with: (1) passwords; (2) encryption; (3) criminal laws penalizing “unauthorized access” to computers; and (4) data privacy laws. Overcoming such obstacles can be tricky—but helpful guidance does exist.

Commentators suggest account holders take four steps to plan for death/incapacity. First, they should inventory their digital footprint by identifying accounts and determining if they have financial or sentimental value. This process should include listing usernames, account numbers and passwords (the average person has 25 passwords). This sensitive list should also be kept separate from their will; a probated will becomes a public record.

Second, account holders should routinely back up electronically stored information—especially if the data is stored remotely—so as to save fiduciaries from having to obtain access from remote service providers that are subject to various federal and state criminal and data privacy laws, like the SCA or CFAA. Fiduciaries would thus only have to deal with the aforementioned service providers in order to close or memorialize accounts.

Third, the account holder should make a plan for managing/distributing the inventoried digital property. This includes designating a fiduciary with power and authority over digital property, providing instructions for distribution, and securely deleting digital assets the decedent does not want passed on to his or her heirs. Understanding a site’s default terms with respect to whether certain accounts will be automatically frozen or deleted is also critical.

And fourth, the account holder should expressly authorize service providers to disclose private information to their fiduciaries so as to evidence their “lawful consent” thereto, and “authorized access” to the data. This can be accomplished by including a clause in a will identifying the above federal laws.

Given the explosion of online content and a comprehensive statutory scheme on the books, digital estate planning may soon become the new normal. Until then, a little knowledge may help stave off the looming specter of digital death.

Is Your Digital Life Ready for Your Death?

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, some 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. 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.


No legislation.


No legislation.


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No legislation.


No legislation.


No legislation.


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.
Effective October 1, 2005


Law: Fiduciary Access to Digital Assets and Digital Accounts Act – House Bill # 345 w/HA 1 + SA 1
Description: Upon written request, “fiduciaries” (i.e. Power of Attorney, Executor, Trustee, otherwise authorized individual) are granted access and control of the digital assets and digital accounts of an incapacitated or deceased person. This includes every digital asset currently in existence (email, social media accounts, online shopping, photos, videos, etc…) and ones that have yet to be invented. Once the digital service provider (“custodian”) receives a written request along with certified proof (letter of testamentary or administration, court order, Power of Attorney form, Trust instrument) they must provide access to transfer, copy, or destroy the account.
Status: Passed June 30, 2014; Effective January 1, 2015
(Click here for the full text of the Bill)

District of Columbia (Washington, D.C.)

No legislation.


No legislation.


No legislation.


No legislation.


Law: SB 1044
Description: Executors may access email accounts, social networking accounts, blogging and micro-blogging accounts, and short message services (text messages). A will or court order can restrict access to accounts.
Status: Effective July 1, 2011


No legislation.


Law: Indiana Code 29-1-13 (SB 0212, 2007)
Description: Executors may access email accounts, social networking accounts, blogging and micro-blogging accounts, and short message services (text messages). 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 July 1, 2007


No legislation.


No legislation.


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No legislation.


Proposed law: LD 850 (HP 601)
Description: To Study the Issue of Inheritance of Digital Assets
Date introduced: March 5, 2013
Status: Passed May 21, 2013
Note: LD 850 (HP 601) is not a law governing estate administration. LD 850 (HP 601) is to study the issues involved in digital assets. To see the full text of the proposal, click here.


Proposed law: SB 0029: Estates and Trusts – Personal Representative – Administration of Internet-Based Accounts
Description: Authorizing a personal representative to take control of, conduct, continue, or terminate an account of a decedent on a social networking Web site, micro-blogging or short message service website, or electronic mail service website.
Date introduced: September 14, 2012
Status: Received Unfavorable Report by Judicial Proceedings on February 18, 2013
Full text: Click here for full text of the proposed Maryland law


No legislation.


Proposed law: HB 5929
Description: Probate; wills and estates; personal representative; give power to control the online mail, social media, and similar accounts of the deceased. Amends 1998 PA 386 (MCL 700.1101700.8206) by adding sec. 3723.
Date introduced: September 20, 2012
Status: Unknown
Full text: Click here for full text of the proposed Michigan law


No legislation.


No legislation.


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No legislation.


Proposed law: LB 783
Description: This bill provides the personal representative of a deceased individual the power to take control of or terminate any accounts or message services that are considered digital assets. The power can be limited by will or court order.
Date introduced: January 5, 2012
Status: Indefinitely postponed as of April 18, 2012
Full text: Click here for full text of the proposed Nebraska law


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.
Date introduced: February 18, 2013
Status: Approved June 1, 2013. Effective October 1, 2013
Full text: Click here for full text of the Nevada law

New Hampshire

Proposed law: HB 0116
Description: An act relative to the powers of an executor or administrator to take control of a decedent’s social networking websites.
Date introduced: January 3, 2013
Status: Tabled as of January 30, 2013
Full text: Click here for full text of the proposed New Hampshire law

New Jersey

Proposed law: A2943
Description: Authorizes executor or administrator to take control of online accounts of deceased person.
Date introduced: May 14, 2012
Status: Passed by the Assembly June 21, 2012. Received in the Senate, Referred to Senate Commerce Committee June 25, 2012
Full text: Click here for full text of the proposed New Jersey law

New Mexico

No legislation.

New York

Proposed law: A823-2013
Description: Provides access to a decedent’s electronic mail, social networking and/or micro-blogging accounts to the executor or administrator of the decedent’s estate
Date introduced: January 9, 2013
Status: Unknown
Full text: Click here for full text of the proposed New York law

North Carolina

Law: SB 279 – S.L. 2013-91
Description: To access, take control of, handle, conduct, continue, distribute, dispose of, or terminate any digital assets, as defined in G.S. 28A-13-11(d)(3), and digital accounts, as defined in G.S. 28A-13-11(d)(2), owned by the decedent at death.
Date introduced: March 12, 2013
Status: The proposal for digital accounts was removed from the final version of the law, which was signed by the Governor on June 12, 2013.
Full text: Click here for full text of the North Carolina law

North Dakota

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.
Date introduced: January 21, 2013
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.
Status: Effective November 1, 2010
Full text of law: Click here for full text of the Oklahoma law


Proposed law: SB 54
Description: Defines “digital accounts” and “digital assets” for purposes of administration of estates and trusts. Requires custodian of digital accounts and digital assets to transfer, deliver or provide access to accounts or electronic copies of assets to personal representative, conservator or settlor upon written request.
Date introduced: January 14, 2013
Status: In Senate Committee
Full text: Click here for full text of the proposed Oregon law


Proposed law: HB 2580
Description: An act amending Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes, in administration and personal representatives, providing for power over decedent account on social networking website, micro-blogging or short message service website or e-mail service website.
Date introduced: August 23, 2012
Status: Unknown
Full text: Click here for full text of the proposed Pennsylvania law

Rhode Island

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

South Carolina

No legislation.

South Dakota

No legislation.


No legislation.


No legislation.


No legislation.


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


No legislation.

West Virginia

No legislation.


No legislation.


No legislation.

Digital estate planing and digital asset legislation is developing and changing very quickly. Though we make every effort to keep this list as up-to-date as possible, there may be information that is not current. Always consult a licensed estate attorney in your state to learn more about your state’s laws.

5 States With 'Facebook After Death'-Type Laws

5 States With ‘Facebook After Death’-Type Laws

What happens to your Facebook and other social media accounts after your death? State lawmakers are pondering that question as they consider new laws about a deceased person’s “digital estate.”

Most recently, a New Hampshire lawmaker proposed a bill that would allow the executor of an estate to access and shut down Facebook accounts. According to Facebook’s terms of service, the company will not divulge login information, even to a deceased user’s relatives, ABC News reports.

If passed, New Hampshire would join five other states that have already passed laws addressing one’s online accounts after death (not all of them address social media sites like Facebook, however). Those states are:

    • Connecticut. An executor or administrator of an estate can access the email accounts of the deceased. The law does not provide for any other online accounts such as Facebook or Twitter, however.


    • Rhode Island. Similar to Connecticut, Rhode Island’s law only grants to the executor or administrator of an estate access to the deceased person’s email accounts. So it is questionable whether the deceased’s representative can access other social media accounts like Facebook.


    • Indiana. This law gives greater access to the representative of a deceased person. Presumably, the representative would be able to access any information stored digitally by another.



  • Idaho. A state law allows a representative of the deceased to take control of, conduct, continue, or terminate any accounts of the decedent on any social networking website, any microblogging or short message service website, or any email service website. It’s interesting that this state would allow someone to continue the account of another, even posthumously.

The New Hampshire law is still far from approval. The lawmaker who proposed the bill is still researching the issue. However, given the number of Facebook users and the importance of Facebook in many people’s lives, you can expect more states to consider new laws.