So what happens to all those digital assets when a loved one dies?
The laws are murky
The Revised Uniform Fiduciary Access to Digital Assets Act (UFADAA) went into effect in 2015, with the admirable goal of specifying how a person's digital estate would be managed after death. The act provided a legal mechanism for a trusted person, or fiduciary, to have access to the deceased person's digital accounts, which could either be actively managed by the fiduciary or deleted. In the event an online account holder died without naming a fiduciary, the account provider's terms of service would govern the disposition of the account.
In practice, however, the new rule is more than a little messy. For one thing, several states have enacted their own versions of UFADAA, some haven't enacted any digital asset rules, and online account providers are continually updating and changing their terms of service. Further complicating matters, far too few individuals have taken steps to organize their digital estate, let alone officially appoint a fiduciary. Without a digital estate plan, disposing of digital assets can tie up an estate in probate court for years.
Taking a written digital inventory is essential
Unfortunately, there's no easy way to uncover all of your loved one's online accounts after he or she dies. Probate lawyers suggest starting with an email account — if you're lucky, your loved one's computer, notebook, or smartphone will already be logged into email, so you can use your sleuthing skills for clues about their online accounts.
Bank records can yield more clues, especially automatic debits for things like insurance, entertainment service providers, and utilities.
You can also pay third-party services to help you locate hidden online accounts and their terms of service, in order to manage them after the death of the account holder.
But in most cases, you're still essentially looking for needles in a haystack without a documented digital inventory and a legally designated digital fiduciary.
Digital estate planning professionals suggest breaking the inventory into four separate pieces:
- Financial accounts
- Email and social media
- Digital assets such as photos, music, books, and intellectual property
To tackle password management, there are services that let you collect and store all your online accounts and passwords, and designate a user with "emergency access" who can access them in the event of your death or physical incapacity.
Financial accounts should be recorded in paper form and securely stored where your fiduciary can easily find them. In addition to bank and brokerage accounts, be sure to list insurance and retirement account information. Also include your account information for automatic monthly deductions for things like car payments, utilities, and credit cards, as well as subscription services like Netflix, to make it easier for your fiduciary to manage them or close them down. Don't forget accounts like PayPal or eBay, which are linked to a bank account, and have unique rules for account transfer and closure.
Without a digital estate plan, disposing of digital assets can tie up an estate in probate court for years.
Your email and social media account information can be stored in your password manager. Depending on the provider, you may be able to specify how your account is managed in the event of your death. Google, for example, has an "inactive account manager" feature that lets you designate an emergency contact who will be notified after a certain period of inactivity, and is empowered to make decisions about how your account is managed. Yahoo, on the other hand, will not turn your account over to a designee.
Facebook has a "memorialization" feature that lets a designee manage certain features of your account. In general, you need to check the terms of service for each account to see what provisions are in place after the account holder dies.
Digital assets can be a bit trickier to manage, since they take many forms. Cloud-based photo storage services have different legacy provisions than your iTunes music and book collections — iTunes assets are merely licensed and not actually owned, so they cannot be "willed" to a designee after your death like your photos and videos.
Intellectual property — if you're a novelist or photographer, for example — should be cataloged and left to a personal representative designated in your will. If you write a blog or own an online storefront, you'll want to make arrangements for these as well, and make provisions for how they should be managed.
Don't forget to account for other digital assets that have monetary value or could potentially be monetized. Domain names, digital currencies, even revenue-generating social media accounts need special attention in your digital estate plan.
Finally, perhaps the most important thing you can do is provide your loved one with the passwords to your personal devices.
Don't neglect privacy concerns
When you designate a digital fiduciary, that person has access to all your digital accounts — and everything they contain. That means he or she will, in most cases, be able to read your emails, see your financial transactions, review your text messages, even browse your search history on Google. Unfortunately, seemingly innocuous transactions and communications can cause contention or heartache among family members, especially during a time of grief.
For this reason, many people designate a different digital executor, typically outside the family, from the person who handles their financial affairs. Discuss with that person, and with your attorney, what rights you have to keep certain digital assets private, if that is your wish. Case law and precedent in this area is slim, but it's worth having that conversation.
Consult a professional when the process gets overwhelming
Ultimately, a good estate lawyer is probably your best option, but be sure you choose one with experience in digital legacies. Probate law hasn’t really caught up with modern technology, so even though digital estate planning is becoming increasingly important, relatively few attorneys specialize in this area of estate law.
Some questions to ask a potential lawyer might include:
- Have you taken any professional training or education in digital estate planning?
- Do you have any materials or resources to help me plan my digital legacy?
- How is digital legacy planning incorporated into your practice?
- What percentage of your clients have a digital estate plan?
You can also do some research on your own before you consult an attorney. There are sites that offer a centralized repository for information and advice on all aspects of digital legacy planning.