Digital estate planning has become necessary since people now conduct so many activities via the internet. As the internet continues to evolve, and allows for new ways to interact online, digital estate planning becomes more complicated.
Digital estate planning concerns what is referred to as your “digital property.” So, what constitutes this property? Below is a list of examples:
- Social media accounts such as Facebook, Twitter, Instagram and Pinterest;
- Email accounts;
- Shopping accounts and stored payment information;
- Photo sharing accounts;
- Online storage accounts;
- Any information stored electronically (cloud or device); and/or
- Domain names.
The above examples are of personal digital property. Personal property may also include digital items with monetary value, such as a revenue-producing blog.
Digital business property should also be taken into account, and includes online stores and client information.
The field of digital estate planning is still new, but a little over half the state in the US have enacted laws concerning this issue. Where there is not state law, typically, the user rules for accounts (such as those enacted by Facebook) will govern.
Why Do I Want Digital Estate Planning?
When a person passes away, someone must handle their estate. In the past, people have written wills and designated executors to handle the estate. While this is still in practice, now that so much personal property and information is online, it raises the issue of how that information can be accessed if you are deceased.
For instance, if you want your photos accessed by loved ones, or want your social media accounts disabled after you are gone, someone will need to have your login information for those accounts. Chances are, you have many online accounts, each with a different username and password.
Occasionally, the intentions of a loved one with regard to their estate may also be revealed in their digital assets if there is a dispute over their last will and testament. Identity theft after a loved one has passed away may also be an issue.
How Can I Manage My Digital Estate?
Digital estate planning allows you to make arrangements for this. Many tech companies may refuse to share the information, even in the face of a court order. Therefore, it can be helpful to designate a digital executor. You can include this information in your regular will.
You should not include your login information in your will, however, because wills become public documents after they enter probate. You can, however refer to a separate written list of login information in your will. The list can be provided to your digital executor.
Alternatively, you can set up a Digital Asset Protection Trust (DAP Trust) and appoint a trustee to manage your digital estate, even after you have passed away.
Some companies will also provide a way for users to designate someone to access their account if they die. Facebook, for instance, allows you to designate this yourself in your online account.
How Do Tech Companies Handle Accounts After Users Have Passed Away?
Tech companies differ in how they treat accounts of deceased users. For example, as of May 2018:
- Facebook locks and memorializes the user’s profile if anyone notifies Facebook of the user’s death. A user can assign a legacy contact in advance to manage the memorialized page. The legacy contact, however, does not have access to the user’s full Facebook account, and can only access and manage the memorialized page. Alternatively, Facebook will close a user’s account at the request of a close family member.
- Google maintains an "Inactive Account Manager." Although the name does not reveal the feature’s nature, the manger is actually useful in the event the account user passes away. The manager allows the account user, while they are alive, to control what happens to the profile upon death. The user can request the account be closed, a YouTube video be sent to friends, the account password be sent to a specific person, or many other options. Google may also work with close relatives if there are no instructions left regarding a deceased loved one’s account. This may include account closure and providing the contents of the user’s account to the relatives.
- Twitter deactivates the account if an immediate family member or authorized person provides the user’s death certificate and other information for identification. Twitter may also remove the images of a deceased loved one at the request of immediate family members, but they will weigh the request against public interest factors before honoring the request.
- LinkedIn removes deceased members if a person submits the proper form with the correct information.
Are There Any State Laws Regarding Digital Estate Planning?
Yes, over half of U.S. states currently have legislation regarding digital estate planning. Most of these laws allows for the decedent’s (deceased person’s) trustee or other personal representative to access their digital accounts.
These states include: Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Maryland, Michigan, Minnesota, Nebraska, Nevada, New York, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Washington, Wisconsin, and Wyoming.
Do I Need an Attorney to Protect My Digital Estate?
Digital estate law is a new concept in estate planning that most people will not have experience in. If you would like assistance in making a will you should contact a local estate attorney.
Your attorney will be able to listen to your goals for your estate when you die, and help you develop a will to meet those goals.