If you think about how hard it is for you to keep track of all of your digital information, including everything found on your cloud account and other websites, electronic devices, thumb drives, and external hard drives, imagine how hard it would be for someone else to do it. This information is just as much a part of your estate as physical and financial assets, and you will need explicit instructions for your executor and family on how to get into your digital world after your death
There are three main categories of digital property: personal digital property, personal digital property with monetary value, and digital business property.
Personal Digital Property
Personal Digital Property with Monetary Value
Digital Business Property
Think about all the electronic devices we have that store, stream, or allow us to manipulate digital information and the information on them.
Whether this is your computer, tablet, smartphone, digital assistant, digital music player, e-reader, digital camera, smart home device, television, blu-ray or DVD, cable box, or watch, it is a lot to keep track of.
These devices could hold classified files, browsing, call, credit, or purchase history; saved usernames, passwords, credit card information, other personal information, private email, chats, texts, photos, location data; access to information for safes, safe-deposit boxes, and alarms; medical and exercise data, contact information of your family and friends, and financial benefits accrued over time such as loyalty points.
This is just a partial list of all the things you can do with your electronic devices for personal and business use.
If you own a business, most of your information and activities will be digital, and probably more complex. Your business is probably aided by legal and financial experts who could help you plan for its transfer after your death.
Digital business property may include:
In this day and age, most people have digital information stored in numerous places, such as thumb drives, computers, or in the cloud or other online storage accounts. However, digitally stored information may only be the tip of the iceberg when it comes to your digital footprint.
Most people have an online presence, be it email, Twitter, LinkedIn, or any of a list of websites you use on a regular basis, online groups you are part of, streaming services you use, etc. that is much longer than we would expect and may include:
Your internet presence that needs to be dealt with upon your death may be enormous. Many of these websites you visit or online services you use on a regular basis have your user history, personal information, and/or credit card information.
Since each may have a different domain name, username, and password, it can be an overwhelming process if your Power of Attorney agent, executor, trustee, family, business partner, or beneficiaries/heirs have to manage your digital estate.
If they must, as it is with most of your digital footprint, it will be up to them to contact each individual server to convert or discontinue any accounts. This can be a difficult and sometimes impossible task, depending on federal law and the laws of your state.
This can be a very long process. The longer your accounts remain active after your death without being used, the risk of identity theft, credit card fraud, and other related problems increases. Your surviving family may be responsible for any consequences of this.
You can save lots of time, effort, and perhaps money by listing every website you have an account with including what services you use and the relevant domain names, usernames, and passwords so they can deal with these sites as soon as possible.
Other options include leaving them with your attorney or storing them in a locked file cabinet, home safe, or safe deposit box.
Once you provide the login information to access digital information, there are a few other obstacles to settling your digital affairs, although it is a legal grey area for them to be logging on with your username and password.
Federal data privacy laws do not allow online account service providers to provide the contents of your active websites to anyone else without your lawful consent. In fact, most of these websites will lock up your account without a death certificate and your express permission for others to access it.
Unfortunately, this information is usually buried in the “Terms of Service,” the required agreement when you sign up for a service which most users don’t read. There are a few organizations that may be able to help.
Facebook, Gmail, and iTunes are among the few providers that attempt to cooperate after your death, despite these laws
Some sites such as Google, Facebook and Gmail may allow you to request an option while you are alive to name a person who will be allowed to access the account after your death.
However, to be absolutely certain that you have someone to manage these accounts, you must make these requests official by including them in your Will or Living Trust.
Another option is to simply have your account deleted after your death.
Google has an Inactive Account Manager that allows you to name someone who will be notified if your account has been inactive for a certain period of time.
Facebook allows you to name a legacy contact who may know some of your account data when they need to manage your site if you can’t and/or have permission to manage your account after you die.
Apple services will often delete all contents and terminate your account upon being notified of your death, rendering any files unrecoverable.
For detailed information about specific websites, see “Closing Internet Accounts.”
Both state and federal laws prohibit unauthorized access to your computer system and/or personal data.
These laws serve to protect you against fraud and identity theft, but would make it almost impossible for executors and/or family members to gain access to your digital assets and information if there were no regulations to overcome them.
43 states have passed a law created by the Uniform Law Commission called the Revised Uniform Fiduciary Access to Digital Assets Act (2015). This law gives a fiduciary, such as your family, executor, or the person appointed by the court (“conservator”) the right to access and manage your assets after death.
There are general guidelines, which assets can be accessed varies from state to state.
These laws are changing to keep up with the digital world, but it is difficult with the rapid changes in the internet.
You could name a Digital Executor, who would be the person most familiar with computers and the internet. Since most states do not recognize this as a distinct entity, you may name an executor who knows they are responsible for your digital estate.
Like all estate planning documents, you should specify the role with specific legal language that includes all the digital assets that need to be accessed and guidance as to what to do with each.
Examples of tasks for a Digital Executor.
See Managing the Web.