Your Digital Afterlife

By Jeffrey M. Manley

Few people consider the fate of their online presence after death. Sometimes a Facebook page or Twitter account simply remains frozen in time. Sometimes they become memorials to a person who has passed away.

Granting control of digital content to heirs is a complicated and legally questionable process because in the digital era, privacy laws conflict with the rights of loved ones to access electronic property. In In Re Facebook, Inc., for example, the court concluded that Facebook could not be compelled to turn over account contents to the executor (the deceased 16-year-old’s mother) who wanted to determine if her child had committed suicide. Service providers are that reluctant to violate privacy laws.

Digital assets do not only have personal significance but also have real monetary value. On average, people value their digital property, including the content of their social media websites, blogs, music playlists, games, videos and photographs stored on websites such as YouTube and Flickr, at $55,000, according to a 2011 McAfee survey. And yet, upon death or incapacity, the fate of such property is unclear. While a personal representative must faithfully manage and distribute all of the property of his or her client, when it comes to digital property such responsibilities are often in conflict with privacy laws, the terms of service agreements with digital service providers, state statutes and even the Federal Trade Commission.

While the law is certainly murky in regard to the inheritance of digital assets, progress is slowly being made in terms of clarifying how heirs or fiduciaries can obtain access to such property. In 2013, Google announced a policy to allow an owner to select “trusted contacts” to receive data from Gmail or Google+ in the event of death. In February of 2015, Facebook changed its privacy policy to allow you to designate a “legacy contact” who will be able to post on your timeline in the event of your death. Acting as a manager, the legacy contact may approve new friend requests and update cover and profile pictures, but cannot read private messages. To date, nineteen states have or are creating laws to grant fiduciaries the right to access and manage accounts after the owner has died (Arizona is not yet one of them). Finally, the Uniform Law Commission has recently created the Fiduciary Access to Digital Assets Act, although it has not yet been adopted by any state or as the law of the land.

So, what can you do in the meantime to protect your digital assets while the law is so unsettled? Despite this uncertainty, estate plans should include a method to transition your digital assets to your heirs. The first step is to create a secure inventory of all accounts of value along with user names, passwords and security questions and answers. The only person permitted access to this list should be the fiduciary. There are some online digital estate-planning services such as SecureSafe, LegacyLocker and Asset Lock who promise secure storage, but be aware that such companies may be sold or go out of business. Secondly, provide instructions for what to do with the digital property – delete, store, distribute, etc. Finally, expressly authorize service providers to allow the fiduciary access to the owner’s digital content. A provision to this effect can be included in a will or power of attorney. Such steps can minimize uncertainty until a uniform set of laws governing the disposition of digital assets is enacted in Arizona.

Jeff Manley is a trusts and estates attorney and can be reached at jmanley@maypotenza.com.

For Further Reading:

James D. Lamm et al. The Digital Death Conundrum: How Federal and State Laws Prevent Fiduciaries from Managing Digital Property, 68 Univ. of Miami L. Rev. 385 (2014).

“Manage Your Digital Assets,” Wealth. 2015. Northern Trust Corporation. https://wealth.northerntrust.com/luxury-living/manage-your-digital-assets