Updated: October 12, 2022
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 other electronic devices we have that store, stream, or allow us to manipulate digital information and the information on them.
Whether this is the devices listed above or your smart home device, television, Blu-ray or DVD, cable box, or watch, it is a lot to keep track of.
These devices could hold:
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.
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.
Less secure, but easier to use, is a browser based program such as Chrome Passwords.
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 gray area for them to be logging on with your username and password.
Data privacy laws were initially created so that you were guaranteed access to any private information held by the government, insurance companies, healthcare providers, businesses, and other organizations. They eventually evolved to include preventing the sharing of this information. As the internet and digital storage of information grew, limiting the ability of others to access this information became a problem.
While it may be difficult to prevent others from acquiring certain information about you when you access the internet, there is a lot of information that you are able to protect by the simple process of only sharing things like credit card numbers, social security numbers, and addresses with sites you trust to protect it.
Recent federal and some state data privacy laws now prevent online account service providers from revealing the contents of your active websites to anyone else without your lawful consent. In fact, most of these websites that guard your private information will lock up your account without a death certificate, unless you have a document that names a legacy contact who will have your permission to access it if you are incapacitated or after your death.
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. This can make it difficult or even impossible for someone to access your account after your death.
There are a few organizations that may be able to help.
Another option is to simply have your account deleted after your death.
Apple services will often delete all contents and terminate your account upon being notified of your death, rendering any files unrecoverable.
California, Colorado, Connecticut, New York, Virginia, and Utah are the only states to enact individual data privacy laws. As of May 2022, state-specific data privacy laws are being considered in Alaska, Louisiana, Massachusetts, Michigan, North Carolina, New Jersey, New York, Ohio, Pennsylvania, Rhode Island and Vermont.
Both state and federal laws prohibit unauthorized access to your computer system and/or personal data, also known as computer hacking. All 50 states have computer crime laws against unauthorized access or computer trespass. Some state laws have other specific types of computer crime, such as spyware, phishing, denial of service attacks, and ransomware.
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.
45 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.