I’ll Tweet When I’m Dead: Estate Planning in the Digital Age

I’ll Tweet When I’m Dead: Estate Planning in the Digital Age

Words Cloud, by Greek Tweeters, CC BY NC 2.0
Words Cloud, by Greek Tweeters, CC BY NC 2.0

Hooked on Twitter? Can’t miss a day without tweeting? Soon there might be a way to continue gracing followers with pithy witticisms even after we’re no longer alive. The application, now in beta, is called “LivesOn.” “When your heart stops beating, you’ll keep tweeting,” the LivesOn website home page cheerily proclaims.

Welcome to the world of the “digital afterlife,” a product of the fact that we increasingly live our lives online. With the ubiquity of social media and other forms of online media, we should consider the possibility that our tweets, photos, videos, posts, blogs, likes, pins, tags, online storefronts, email messages and avatars may live on even after we have died, and whether this is what we want.

Cases in the News

A number of well-publicized cases illustrate the negative consequences of not planning what to do with online accounts in the event of an untimely death. Take the case of Lance Corporal Justin Ellsworth, who was killed at the age of 20 in 2004 by a roadside bomb while deployed in Iraq. His father John Ellsworth wanted to create a memorial to his dead son and requested that Yahoo release the e-mails that his son had written while he was on duty. After a legal battle, the following year, a probate court ordered Yahoo to provide the contents of his son’s email account to Ellsworth (see Yahoo releases email of deceased Marine).

The case highlighted the tensions between an ISP’s terms of service, which are designed to protect privacy, and the needs and interests of a grieving family. Other cases have arisen that involve families who want access to the accounts of children who commit suicide or who pass away due to illness.

Why You Should Care

Digital estate planning can help prevent, or at least mitigate, the painful consequences of situations such as those encountered by the Ellsworth family. Without digital estate planning, your survivors will have to guess at what your wishes might have been. Well-meaning family members, if they have the technical capabilities, may circumvent terms of service and your privacy to access the contents of your digital accounts. Information that you may not have intended others to see may be brought to light. Alternately, valuable online information that you would have wanted your survivors to access may not be accessible and ultimately deleted.

In addition, proper digital estate planning can help prevent your identity from being stolen after you die or become incapacitated. As Gerry Beyer and Kerri Griffin note in their paper, Estate Planning for Digital Assets, “Until authorities update their databases regarding a new death, criminals can open credit cards, apply for jobs under a dead person’s name, and get state identification cards.”

Herding the Legal Cats: The UFADAA

Proper transmission of digital assets after death is an emerging area of law. Currently, the laws and guidelines in the United States on how to handle online accounts and data after death or during incapacitation are incomplete, complex, and conflicting. Fortunately, a recent legal development may help change that. On July 16 in Seattle, the Uniform Law Commission passed the Uniform Fiduciary Access to Digital Assets Act, which governs access to digital assets.

Drafting a successful uniform act that addresses a task that can be emotionally fraught, in the midst of an ever-changing technical and legal landscape, was no small challenge. Among the key challenges that the ULC had to address in drafting the act were: Defining terms that have not been previously defined in any statutes, ensuring compliance with existing federal and state laws that address unauthorized access to digital information (for example, the Stored Communications ActComputer Fraud and Abuse Act, and The Digital Millennium Copyright Act), providing enough specificity to prevent unnecessarily litigation, and enough generality to allow individuals and courts leeway for evolving interpretation as technology continues to change.

According to a recent ULC press release, “The UFADAA solves the problem using the concept of ‘media neutrality.’ If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset.” The uniform act covers four types of fiduciaries:

  • Personal representatives (also known as executors) of a deceased person’s estate
  • Conservators (also known as guardians) for a living person
  • Agents acting under a power of attorney
  • Trustees of a trust

While the UFADAA would vest fiduciaries with the authority to access, control, or copy digital assets, it would honor the account holder’s intent to keep certain assets private.

Ultimately, after a final review and edit of the UFADAA (anticipated this fall), this uniform act will be finalized and available for consideration and adoption by the states.

What You Can Do Now to Plan Your Digital Estate

In the meantime, you can still develop an effective digital estate plan, in consultation with your attorney. Key steps will include:

  • Completing a digital asset inventory
  • Identifying a digital executor and consulting with your attorney
  • Providing access to your digital assets
  • Providing instructions on how to administer your digital assets
  • Granting your digital executor(s) authority to administer your digital estate

Also, it won’t hurt to familiarize yourself with your online service providers’ terms of service and other relevant resources. Key resources that you may want to start with include the following:

In addition to these resources, digital death and afterlife experts Evan Carroll and John Romano maintain a digital death and afterlife online services list on their blog, the digital beyond.

Don't Let Your Digital Assets Die With You

Growing importance of the digital legacy

Testators are increasingly being advised to leave clear instructions about their ‘digital legacies’ after their death.

The latest organisation to stress the importance of online assets is the Law Society. It recommends that people should, at the very least, keep an up-to-date list of all their online accounts, such as email, banking, investments and social networking sites, to make it easier for family members to recover or close them.

However, the society considers that the list should stop short of recording passwords or PINs. ‘An executor accessing [the deceased’s] account with these details could be committing a criminal offence under the Computer Misuse Act 1990‘, said Gary Rycroft, a member of its wills and equity committee. Passwords should certainly not be listed in a will which will ultimately have to be published.

The term ‘digital legacy’ also encompasses computer game characters in online games like World of Warcraft; music and films; internet domains registered to the deceased; YouTube videos; and Bitcoins, all of which can represent valuable assets.

‘An experienced and wealthy game character takes time to create, and it appears it may be possible to sell such characters online,’ says Patricia Milner of Withers. ‘What such an asset would be worth for inheritance tax purposes on death is unclear as the market in this kind of asset is very new.’

Similarly, says Withers, YouTube videos can attract payments from advertisers if the video gets a large number of viewings.

Without proper records much of this can be lost on the owner’s death. According to Oliver Embley of Wedlake Bell, the best solution is for the testator to leave a letter of wishes giving executors access to online accounts and stating which accounts should be deleted after death.

However, executors are at the mercy of service providers and problems may be encountered if service providers do not recognise the consents given in a Letter of Wishes. Even where records exist, the licensing arrangements attached to some assets – such as Apple’s iTunes – specify that the assets die with the original owner.

There may also be jurisdictional issues, says Embley. ‘However, for the present, setting out express instructions in a letter of wishes gives the user the best chance of enabling his loved ones to inherit his personal digital effects.’