What will happen to your Facebook account when you
die? What about all your photos shared on social
media, your texts with loved ones, or documents on
cloud-storage systems? In just the two-year period
from 2012 to 2014, humans produced more data than
in all of human civilization before that – and the pace is
It’s not clear what people’s digital presences will look
like in years to come, but it’s sure that an increasing
number of people will be creating and accumulating
growing reams of data until the day they die. But then
The law is very clear about handling paper documents
and other physical property when someone dies. But
as a law professor at Drake Law School who has been
studying property transfers for years, I’ve seen that
laws, regulations and court rulings are only recently
trying to figure out how to handle the ever-changing
realm of digital technology. So far, in most cases the
information is controlled by the companies that store it
– regardless of what users want or direct to happen
after their death.
Law catching up with technology
Many people have had email and other digital
accounts for decades, some stretching back to the
early pioneers in the 1960s. But large numbers of
average people really only began creating significant
digital footprints in the early part of the 21st century.
Facebook and Gmail began operations in 2004;
YouTube started in 2005; Twitter launched in 2006; the
iPhone came out in 2007.
Almost a decade later, a group of lawyers from around
the country developed a draft uniform law they
encouraged all 50 states to adopt, which would allow
people to specify in their wills that the executor of their
estate can access their email and social media
profiles. So far, 39 state legislatures have adopted it
and seven more are considering it this year.
The uniform law doesn’t specify – and courts have not
yet been asked to rule on – exactly how that access
should happen. So for the moment, a dead person’s
executor must contact the company behind each digital
platform to determine how to get into the person’s
In states that haven’t passed this law, companies
themselves can decide whether to allow loved ones
access to a late relative’s digital assets. Yahoo, for
example, is notorious for terminating an account upon
a user’s death and forbidding access afterward.
The company’s refusal to grant access to surviving
family members is being challenged in Massachusetts,
a state that has not adopted the uniform digital assets
law. In October 2017, the Massachusetts Supreme
Judicial Court ruled that an executor could consent to
the disclosure of emails on behalf of the dead person
whose estate was being managed. The case is back
before a lower court to decide on other issues, including whether the estate will be able to access the
account despite Yahoo’s terms of service agreement.
The role of privacy
With so many legal issues yet to be decided, people
should be sure they include digital assets in their
estate planning and encourage their loved ones to do
Access to the email of a person who has died may be
the most important to unlock: Messages and images
are likely to be emotionally important. In addition,
banking, utilities and other accounts are often linked to
an email address; gaining online access to those can
help administer a person’s estate.
Of course, it’s important to protect the privacy of a
person who has died – despite the general legal
assumption that a dead person no longer has privacy
that needs protecting. The uniform state law does this
by requiring a person to have left specific written
permission for an executor to access an email account.
Making plans for yourself
To prepare yourself for a digital afterlife, the first task is
to state, in writing, what you want to happen to your
digital assets. Create a list of the accounts in your
name, and determine which ones you want your
executor to access – and which should be deleted.
Crucially, do not list usernames or passwords in your
will, because a person’s will becomes a public
document upon their death. Instead, consider
recording access information for these accounts in a
safe place – like password management software –
and leave instructions for your executor to find them.
It’s not yet clear whether credits and purchases with
digital media accounts (like the Google Play Store or
iTunes) or online reward account points can be
transferred when their holder dies. The only solution
for now may be to leave your executor with instructions
on how to access the value stored in those accounts – and back up the media on external hard drives stored
in a safe place.
Finally, check with the companies whose online
services you use to see if they provide their own
method to transfer assets at death. For example,
Google has pioneered a method for its users to
indicate what they want to have happen to their
account if they don’t access it for several months.
By engaging in some simple estate planning, you can
protect your privacy as well as ease the management
of your estate after your death. Plan for your digital
assets in the same way you would any other valuable
tangible or intangible asset. After all, digital assets are
today’s shoeboxes of photos, letters and other
mementos. Planning can preserve your legacy in its
Article written by Natalie Banta, Associate Professor in Law, Drake University
RSW Publishing has an agreement to republish this author’s content.
This article was originally published on The Conversation.
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