We live in a world where most of us have a growing online presence. Yet too few have stopped to ponder what will happen to our logins when we are gone. Our various digital accounts – email, social media, business, financial, photo-sharing, bill pay, loyalty programs, bitcoin, etc. – have collectively morphed into a new form of personal property. Not quite tangible; not quite intangible; but valuable, nonetheless. A recent survey concluded that the average person living in the United States owns approximately $55,000 worth of “digital assets,” not to mention the emotional value.
With so much value attributed to our digital assets, it is prudent to consider the status of these assets upon incapacity or death. Will your agent under your power of attorney have access to your online financial accounts? Will your loved ones be able to access all of your family photos after your death? How can you assure access of the ones you trust while protecting your identity? It is important to give some thought to the eventual transfer of these assets and even their incorporation into a “digital estate plan.”
Doing so, however, may be tedious enough that you vow to go off “the grid” for good. That is because, unfortunately, no two digital assets are created or governed the same. You may own some of your digital assets, while others only grant you a license and are subject to user agreements and terms of service. Therefore, the permitted transfer of each asset and the way by which you grant a third party access (during life or at death) can vary widely. And while Federal law has attempted to regulate some of our digital communications and computer fraud and abuse, technology is evolving faster than Congress can react to the corresponding issues created. Similarly, the Texas Legislature has considered crafting legislation addressing fiduciary access to digital assets, but to date has failed to pass legislation to govern this arena. In fact, demonstrating the magnitude of the problem, there is not yet even a universally-accepted definition of “digital assets.”
So, what can you do to protect your digital assets, ensuring access by those intended and securing the transfer of their value at death? As part of any estate planning update, you should categorize all of your digital accounts and include passwords, keeping this list in a safe place (perhaps with your Will or incapacity documents) known only to your fiduciaries so that they have access in the event of your incapacity or death. This list should specifically include any bill-pay schedules, so that your fiduciaries can ensure the mortgage gets paid and the electricity stays on. If you have an account of particular value or significance, you should review the licensing agreement or user agreement, which usually specifies precisely how to grant a third party access or to transfer any value in the account. You may also wish to contact the provider directly for any guidance they can provide. Fiduciaries who take on the role of managing any digital assets should also double check the respective governing agreements, since Federal law criminalizes unauthorized access to certain electronic communications. Whenever possible, and especially with digital photos, videos, legal documents and important correspondence, you should back up digital assets to tangible media. Finally, a quick Google search for digital afterlife companies will give you a list of businesses that allow you to catalog accounts, store passwords and designate your wishes as to your digital assets. Ironically, that creates yet another digital asset to consider.
Though not an attempt to cover every type of digital asset, here are a few commonly-used digital account types with some preliminary guidance on how to designate access upon your incapacity or death:
- Google has an “Inactive Account Manager” option. This allows you to designate who should have access and what should be done with your Google accounts. If the deceased account holder has failed to provide instructions as to his or her account, Google also has a process to work with immediate family members and estate representatives to close or access the account.
- Facebook allows you to appoint a custodian for your account using its “Legacy Contact Feature.” Your designated custodian will have only limited access to your page in an effort to preserve your privacy. Facebook also has an alternate option that allows you to direct that your page be immediately deleted upon your death.
- LinkedIn has a process by which your family member or loved one completes an online form after your death. This person is asked to provide your name, profile URL, email address and date of death, the last company your worked for and a link to your obituary. LinkedIn will then reach out to the person who has completed the form to discuss the removal of your profile.
- Twitter freezes your account immediately upon notification of your death. Twitter will work with the person authorized to act on behalf of the estate or a verified immediate family member to have the account deactivated. Account access is barred to anyone regardless of his or her relationship with the deceased account holder.
As for your computer files, you should provide the locations and passwords to your fiduciary, along with the existence and location of any backups.
Ownership of domain names can be paid for on a long-term basis. This should be considered where a website should continue after the death of its owner. Your fiduciary should be aware of and have access to your hosting agreement so that he or she can renew the agreement when necessary.
Whether to your delight or dismay, it is becoming harder to avoid the digital aspects of life. The best you can do is be conscious of the issues and prepare for worst. And by all means, back up regularly.