“That’s all I want, that’s all you need in life, is a little place for your stuff, ya know. . . That’s all your house is: a place to keep your stuff. If you didn’t have so much stuff, you wouldn’t need a house. You could just walk around all the time.”—George Carlin
We all have a lot of “stuff.” Getting and taking care of our “stuff” is a constant preoccupation for much of our lives. The preoccupation even extends beyond our lives. For all of its complexity and mysteries, estate planning is just a set of instructions for what will happen to your “stuff” after you die.
The law has set up an elaborate framework for dealing with the post-mortem distribution of real and personal property. This framework, premised as it is on traditional notions of property, has its limitations in the contemporary world. What we consider to be our property is changing. As authors John Romano and Evan Carroll say in their book Your Digital Afterlife, our lives are starting to be lived online. The switch to a virtual life means that our property is rapidly moving from physical to digital objects, and old mediums of communication are quickly moving aside. As Romano and Carroll say on page 3 of their book, your digital content “is your digital legacy. Passing this legacy on will become more important as the shift to digital continues and as your digital content becomes a richer reflection of you.” For the estate planner, the question posed by the new mode of ownership is a complex one: How can we plan an estate when our “stuff” is online?
Romano and Carroll devote most of their book to discussing the part of our digital legacy that may not have a monetary value. Our digital property, just like our physical property, consists of items that are valuable only to us. Just as many of us might have an album of cherished photos, or a collection of personal letters from a loved one, we might have saved e-mails or digital pictures that have strong sentimental value. What will happen to them when we die? Access to online social media accounts also is often important after death. Survivors may want access to social media for mementoes of a friend or family member. They may also want access to notify an online community of a member’s demise. Families of people who have died under questionable circumstances often look to online postings for answers to questions about their family member’s passing.
Our online legacy may include property of a monetary value, as well as property with only sentimental value. As we move more of our lives online, our valuable online property will increase. The value may be relatively small for many items, such as an iTunes music collection or a library of e-books. The value may be significant, for items such as copies of important business documents stored online in the “cloud.” In addition, financial transactions are moving further into the “cloud” everyday. As of 2012, the U.S. Treasury will no longer sell the familiar paper savings bonds, but will sell only digital bonds. Beginning in March of 2013, all U.S. government benefit payments, including Social Security benefits, will be made by direct deposit. Paper checks will be discontinued. Virtual currencies such as bitcoin, championed by Cameron and Tyler Winklevoss, could prove to be a valuable part of decedents’ estates in the future. The intangible, highly personalized nature of digital property poses unique post-mortem legal issues.
In theory, virtual property in a decedent’s estate should be treated no differently than more traditional assets. In most important aspects, intangible assets are treated in the same manner as tangible personal and real property when dealing with estate planning and administration. There should be no reason to conclude that online assets would be treated differently. A clause in a will that leaves the “rest, residue, and remainder of my estate” will be held to give the person you designate your intangible ownership interest in a mutual fund, just as it would let him or her inherit an automobile you owned. Likewise, you might think that a clause such as that should see to it that the beneficiary gets the ownership of family photos and videos you stored on a secure server, or the extensive library of recorded music you stored online. After all, it’s your property, isn’t it?
You may be surprised to find out how little of what you “bought” online will become part of your estate. Have you downloaded a lot of music from an online seller? Is there someone you would like to inherit that music? Under the terms of the iTunes contract, for example, the digital music you thought you owned belongs to Apple. Your estate has no right to any of it after your death. Likewise, your digital library will not be part of your estate. Amazon.com is the owner of the e-books you purchased for your Kindle.
The problems go beyond questions about the ownership or descent of virtual property. Access to that property, or to any virtual property, is often a problem. Traditionally, access and operation of online accounts has been governed by the terms of the contract with the service. Some service providers, such as AOL and EarthLink, have policies in place allowing a deceased account holder’s survivors to obtain access to e-mails. On the other hand, the e-mail service contract used by Yahoo! states that the rights to a member’s ID and account terminate upon the member’s death. In 2004, the family of Lance Corporal Justin Ellsworth, a Marine killed in Iraq, sued Yahoo! for access to his account. The family wanted access to retrieve copies of e-mails, so that the messages could be preserved in a scrapbook. Yahoo! refused to release Corporal Ellsworth’s password to his family, citing privacy issues and corporate policy (a Michigan probate court judge ordered the release of the e-mails, and Yahoo! complied with that order).
Access delayed may be no better than access denied. It takes time to assemble the documentation needed to access accounts, even if the provider permits you to obtain access. If your digital legacy is ignored too long after your passing, it may disappear. Microsoft’s branded services, such as MSN, require users to sign in at least once every 270 days. If they do not, their access to their accounts is blocked and everything stored or saved in them could be lost. Funds left in your PayPal account for two or more years will escheat to your state of residency or to the State of Delaware, if you live outside the U.S. or your address is unknown.
State lawmakers have moved slowly in addressing the question of access to the online accounts of a deceased person. To date, six states have enacted laws that grant access to some or all of a decedent’s online accounts. In addition, as of this writing, legislation regarding access to a decedent’s online accounts is pending in five other states (legislation on the topic was introduced in at least twelve other states in 2013, but the legislatures in those states adjourned without enacting the bills). The earliest laws, adopted in Connecticut (2005) and Rhode Island (2007), apply only to e-mail accounts. They provide that an e-mail service provider shall give access to a decedent’s e-mail account to the executor or administrator of a decedent’s estate. The executor or administrator must make written demand or provide a court order granting access. A new Virginia statute, effective July 1, 2013, gives access only to online accounts that were maintained or operated by deceased minors. A new law in Nevada, effective October 1, 2013, will allow the personal representative of an estate to close social networking, blogging, messaging, or e-mail accounts of a deceased person.
Other statutes enacted more recently—in Indiana and Oklahoma, and Virginia (effective July 1, 2013)—provide access to more than just e-mail accounts. The Oklahoma statute, enacted in 2010, gives the executor or administrator of a decedent’s estate “the power, where otherwise authorized, to take control of, conduct, continue, or terminate any accounts of a deceased person on any social networking website, any microblogging or short message service website or any e-mail service websites.” The Indiana law requires custodians of online accounts to grant access to “any documents or information of the deceased person.” Custodians are required to maintain that information for not less than two years after an executor or administrator makes a request for access to it.
What can you do if you don’t live in a state with a digital access law? It is easy enough to insert language into a will that gives your personal representative the authority to access your online accounts. In addition, there are several services, such as AssetLock or Cirrus Legacy, that will store account information and release that information to designated recipients upon your death. This will allow someone to access financial and similar accounts that contain assets with monetary value, and will also allow access to the personal items with negligible monetary, but high sentimental, value. Social media accounts are more problematic. Facebook provides in its terms of service that passwords are not transferrable, and cannot even be shared with anyone other than the account holder. Giving your log-in information to someone after your death is a violation of the terms of service, and could result in the account being closed and the data being lost. The legality of this clause has not been tested in the context of post-mortem access to accounts. Many commenters have advised noting accounts and passwords so that a personal representative can get to them before the provider knows you are deceased. Such an action could violate federal or state computer privacy laws.
There are a few points for digital estate planning:
Know what you have. This is always the First Commandment of estate planning, whether the estate is digital or tangible. What accounts do you have, and what is in them? How can someone else access those accounts?
What do you want to keep? This is a corollary to the first point. A person who has generated a lot of online content may not care about keeping everything. Be sure to make your preferences known
Keep an updated list. Computer security experts recommend changing passwords on a regular basis. Make sure you note these changes as you make them. Also, make updates to your list of what you want to keep.
Know the rules. What happens to your online accounts if you don’t access them for a period of time? Can the personal representative get into my account, or does she need special permission, or a court order? Understand the terms of service of your digital accounts.
Consider storing important things offline. Having the things we want to keep online makes it easier for us to get to them now, but after we die, getting to them may be difficult, if not impossible. Consider storing important documents, pictures, or messages on a portable hard drive or thumb drive. If you protect it with a password, be sure your personal representative knows the password.
Consider using an online storage service. Companies like AssetLock or Cirrus Legacy can take care of a lot of the problems with a digital estate. If you do use one of these services, be sure to keep them up-to-date on your accounts, and on the people whom you want notified of your passing.