Naomi R. Cahn, Esq.
Naomi R. Cahn, Esq., the Harold H. Greene Professor of Law at The George Washington University Law School, Washington, DC. She is author of a paper published in Probate & Property entitled “Postmortem Life On-Line.”
Our real-world possessions might not be all that we want to leave to our heirs when we die. Nowadays most people have assets in the cyberworld to pass on as well.
These could include online financial accounts such as PayPal balances, bank accounts and brokerage accounts accessed only through the Internet…Web sites or blogs that we own and operate…our digital photo albums, e-mail accounts and social media accounts…collections of ebooks…and downloaded digital music and movies.
These digital assets could have significant value for our heirs—sentimental value in the case of digital photos, for instance, or financial value in the case of a PayPal account or a money-generating Web site.
But when we die, such virtual possessions might be overlooked by heirs who don’t know they exist…be inaccessible to heirs who don’t have the passwords…or be the subject of disputes among heirs and possibly even curious or litigious outsiders.
Don’t expect existing laws to provide a great deal of help in sorting out digital estate issues for your heirs. Most states do not yet have laws on this topic, leaving heirs at the mercy of the policies of online service providers.
Example: Yahoo refused to grant the family of a Marine killed in Iraq access to the man’s e-mails until the family got a probate judge to grant them access. Although many people might want to hide their digital secrets from prying eyes, this soldier had intended to use his e-mails to compile a scrapbook of his wartime experiences, and his family wished to do the same as a memorial to him.
Here’s how to improve the odds that your digital estate will be handled according to your wishes when you die or if you become incapacitated…
Online financial accounts may be difficult for heirs to access even with estate-planning documents in hand.
Example: A Chicago woman had a power of attorney that allowed her to manage her husband’s financial accounts after his degenerative mental condition made it impossible for him to do so. Unfortunately, her husband’s bank told her that it did not recognize power of attorney for online banking, making it very difficult for her to oversee the account.
What to do: If you have money in an online account that does not mail you printed statements, make sure this account is clearly listed in your estate documents to ensure that it’s not overlooked by heirs. And confirm with the financial institution that your power of attorney will be sufficient to allow your spouse or heir to access the account if necessary. If not, consider switching to a different financial institution.
You could add a spouse or heir as joint owner of your online account so that this person can seamlessly take over its management if needed. But be aware that this would put your assets at risk—the joint owner might be able to withdraw money without your permission, and the assets would be vulnerable if the joint owner were sued or divorced.
Also: If you have recurring bills that you pay online, provide a list of these to your spouse or heir and any user names and passwords required to access these accounts. That way, important online bill payments won’t be overlooked. Provide a list of online services and recurring online bills that will no longer be needed after your death, too, and ask this person to cancel them for you so that your estate does not go on paying them needlessly.
If you have a popular and/or revenue-generating blog or Web site, include it in your estate plan so that this asset doesn’t go to waste. Either leave it to an heir who is interested in taking it over or provide instructions for how it should be sold. Make sure that at least one trusted friend or relative has the passwords needed to run the blog or Web site or knows where to find them. Better yet, add a chosen heir as a joint blogger or site administrator while you still are alive to smooth the transition.
Warning: With a blog, check the provider’s terms of service for any specific rules about transferring blog ownership.
List any domain names you own but do not use among your assets in your estate plan as well. Some domain names have resale value.
Do you want your heirs to have access to your e-mail and/or social media accounts after you’re gone, or do you want them deleted? What about the digital photos and videos that you have stored on a photo-sharing Web site such as Shutterfly?
If you fail to think these issues through, these digital documentations of your life easily could be lost to your heirs forever. Or, conversely, a highly personal e-mail or photo could be brought to light against your wishes. Or many Facebook and LinkedIn visitors may never catch on that you’re gone.
Most states do not yet have laws governing rights to access the digital accounts of deceased loved ones. (The exceptions are Connecticut, Idaho, Indiana, Oklahoma and Rhode Island, which have laws governing rights to e-mail and, in some cases, social media accounts. The details of these laws vary.)
With few laws in place, legal rights to access these accounts usually depend on the policies of the company that provides the account. Those companies tend to err on the side of protecting the privacy of the deceased.
Example: The parents of a college student who committed suicide hoped that the young man’s Facebook and e-mail accounts would provide some answers about why he had taken his life, but they were denied access by the providers.
What to do: Ask a trustworthy, tech-savvy friend or relative to deal with your accounts after you’re gone. Give this person a list of your account user IDs and passwords, or keep this list somewhere safe and tell this friend where to find it. Update the list whenever you open a new account or change a password.
Provide the friend with written instructions about how you would like each account handled. Should it be…
Closed?
Expunged of certain private information but allowed to continue?
Maintained but with a posting or automated response added to explain that you have passed away?
Printed out and given to a family member interested in family history?
Facebook also offers the option of “memorializing” a deceased person’s page. The account’s wall remains open for confirmed friends to continue to post messages in remembrance, but most of the account can no longer be accessed or altered.
Warning: Do not list your accounts and their passwords in your will. Not only would it be difficult to update your will every time you change a password, but also your will becomes public record soon after your death.
You may want to leave downloaded collections of books, music and movies to your heirs. But you might not have a legal right to do this even if you have the account IDs and passwords.
Read the small print the next time you purchase one of these digital products. With many sellers, you’ll discover that you’re not technically purchasing the book, song or movie at all, only a nontransferable license to use it, such as with iTunes.
What to do: If you have spent hundreds or thousands of dollars on digital content, consider speaking with an estate-planning attorney about placing it into a trust. In theory, the trust’s beneficiaries would then have a legal right to access the content after you’re gone—though this theory has not yet been tested in court.
