By Elizabeth Wynn
When an individual dies, his named executor or other fiduciary is allowed access to all physical assets including letters, documents, and legal papers. However, in today’s digital age, these fiduciaries also need authority over administering digital assets and accounts upon the incapacitation or death of the account holder.
Almost everyone has at least some assets that are not physical, but instead are stored as data and accessed through the Internet. These digital assets include emails, documents, online photo streams, social media accounts, insurance records, and bank accounts, as well as logins and passwords used to access online accounts.
Imagine this. You could leave photos and videos behind that no one can access. You could have online accounts with money or credits left in them, or you could lock away important financial information with passwords that no one can access. Or you could have social media accounts that continue to produce painful reminders of your absence to your loved ones. This is a problem all of us who access the Internet will encounter in time. There are a few things you can do to deal with these issues now before you die to avoid leaving your loved ones with a tangle of inaccessible digital assets.
First and foremost, make an inventory of all your digital assets. This will probably seem like a daunting task, but it doesn’t have to be. Start with the most important assets and work from there. For example, you may want to begin with your primary email account. This is likely the most important step because usually this is where other online accounts interface, providing login and password resets, credit card balances, accounts payable, just to name a few.
Second, decide what you want to happen to all your intellectual property once you’re deceased. Do you actually want someone else to access your emails, photos, videos, or other materials? There may be some things you want your loved ones to see and some things you don’t. Decide now and make sure your wishes are known.
Lastly, give someone authority over your digital assets in the event of your incapacitation or death. This can be done through a Power of Attorney, Last Will and Testament, or Trust planning.
You must also consider and plan for your online accounts. Google for instance, through their “Inactive Account Manager” allows users to share parts of their account data or notify someone if they’ve been inactive for a certain period of time. On the other hand, upon request and presentation of a death certificate, Yahoo will only allow you to delete an account. There are no options to access a decedent’s emails or photos. According to the Yahoo Terms of Service, “You agree that your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within your account terminate upon your death.” Facebook, once provided with a death certificate, will allow you to delete an account or memorialize it, which basically freezes it in time and removes it from certain features, like “People You May Know.”
Most of the major social media accounts have policies in place to deal with a decedent’s account in similar ways as these, and still others are silent. Check with the Terms of Service on all your online accounts to see what steps you need to take to insure you include all your accounts in your digital asset estate planning.
Practically speaking, the best way to make sure these important digital assets go to the right people is to share the necessary information with those people. It’s never a good idea to include login information in your will because a will becomes public record at your death. This would allow any stranger to have access to these accounts.
Alternatively, in your estate planning documents you can direct your digital fiduciary to a safe place, like a safe deposit box, where he can locate this information. Another option is a password manager. There are online companies that allow you to choose a digital heir to inherit access to your passwords, which will be stored with that company.
Regardless of which method of retrieval you use, make sure you specifically include digital assets in your estate planning wishes.
Elizabeth Wynn is a member of the National Academy of Elder Law Attorneys and practices law in Ridgeland. She and her family live in Madison.