Phyllis Croissant is board secretary and webmaster for the national Funeral Consumers Alliance. She is past president of the Funeral Consumers Alliance of Champaign County, IL, and is a professor emeritus at Eastern Illinois University where she taught in the Gerontology and Exercise Science programs. This article was first published by the Funeral Consumers Alliance and is used with permission.
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In the 21st century, we do more than “live on” in the memories of our loved ones. Many of us will leave a surprisingly large digital legacy online after our death, with assets ranging from the sentimental to financial and legal accounts.
Unfortunately, our loved ones are often left unprepared to navigate the maze of our online afterlife.
This was the challenge faced by Rebecca, when her 40-year-old husband Paul died unexpectedly of a heart attack. She suddenly found herself in a situation more and more of us are encountering: She couldn’t get into his phone, leaving her locked out of everything from personal photos to critical estate information. “He had a four-digit passcode and I literally tried everything I could,” she told CNN. She contacted Apple, AT&T, and even the police asking for help unlocking the phone, but companies do not allow family members access unless the owner has listed them as their legacy contact.
How many things do you do electronically? Do you communicate via emails, WhatsApp, and text messages? Do you pay bills, access investment accounts, or do banking online? Do you use Facebook, Instagram, Twitter, or LinkedIn? Do you store photos, videos, and documents online or in the cloud? Do you have a blog or website? What is stored on your cell phone – photos, email addresses, apps? Do you subscribe to online movies, TV or music streaming?
All your online accounts, and everything in them, are known as digital assets (DAs). They are protected by usernames and passwords that only you can access. It is time to ask yourself: What will happen to your digital assets after you die?
Laws Governing Digital Assets
How can you make sure they are available to your loved ones after your death? The afterlife of your online accounts depends upon the laws in your state, what type of accounts are involved, and the terms of service governing them. You might be surprised to learn that an executor does not automatically gain access to all the deceased person’s online accounts unless they have provided specific consent.
The 2015 Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) has been adopted by most states. It governs access to a person’s online accounts when they die or lose the ability to manage the account. A fiduciary is a person appointed to manage someone’s property. Examples include an executor of an estate, trustee, conservator, or agent under a power of attorney. RUFADAA extends the power of a fiduciary to include management of DAs like computer files, web domains, and virtual currency, but restricts their access to electronic communications such as email, text messages, and social media accounts unless the original user consented to fiduciary access in a will, trust, power of attorney, or other record.
DAs often have two components: a license and a property right interest. Licenses have no ownership interest and cannot be inherited, and most cannot be transferred to a new owner. Your email account probably involves a license from the service provider to access the email system in accordance with terms of their service agreement. You typically retain a property interest over the emails in the inbox. You can transfer them, but not the right to access the account.
Some items you might think are digital assets are solely licenses, such as iTunes and Amazon Kindle accounts. The licensed copy of the downloaded music or books is not your property. Instead, you have purchased an indefinite license to use one copy of the file.
The terms of a service agreement often control the access and transfer of DAs upon the owner’s death. This is different from traditional assets, which are governed by a will, trust, or the state’s intestacy or probate laws.
A service provider’s primary concern is to keep the user’s information secure, safe and private. Therefore, most service providers require online accounts to be held in an individual name and forbid third parties, including personal representatives, successor trustees, and family members, from accessing or transferring DAs at the owner’s death. Rather than grant access, many service providers simply delete the account if they know of a death. However, some service providers allow users to designate individuals who will be granted certain rights (but not complete access) when they are deceased. An example is the Apple Legacy Contact feature allowing you to designate who can access the data stored with your AppleID. Facebook and other social media also have Legacy features.
Whether your family can access your DAs after your death is heavily dependent on whether the digital asset is stored on a physical device or on an online account. In general, family members can access digital assets on a physical device if the passcode is available. In contrast, DAs on an online account often cannot be reached.
Steps to Take in Digital Estate Planning
- Name your digital executor in your will or financial power of attorney.
This is the person you want to take care of your DAs when you die. You can’t just give your login details to a family member. They won’t be legally recognized to act on your behalf. There are legal concerns associated with accessing a deceased family member’s account without the service provider’s permission. The family member may be violating laws such as the Computer Fraud and Abuse Act, which has severe penalties for violating it, including jail time and fines.
The executor of your will may act as your digital executor, or you can appoint someone else, especially if your executor will have much to deal with or isn’t confident with technology.
- Take inventory of your DAs and determine which are of value and what accounts could be closed.
You must provide a way for your digital executor to access these assets. This might include providing usernames and passwords, but also instructions for two-factor authentication or answers to security questions. One of the most important things is to provide your unlock code for your phone and computer. Phones are often needed for text verifications, so it’s helpful for your heirs to hang onto smartphone devices for a while before resetting them.
The more information you can give your digital executor for each account, the better. For example:
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- Account name or ID number
- Web address and/or link to the account or social media profile
- User name and email address associated with the account
- The digital assets associated with the account – e.g., photos, videos, documents
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- Provide explicit instructions for what to do with these assets.
Accounts involving the purchase of products or services should include instructions for closing or discontinuing the accounts (related to your home, subscriptions, streaming, etc.). Your digital executor may need to pay any outstanding balances on such accounts.
For the hardware you own and use to access your digital assets, the decision is the same as for any other tangible property: Who should inherit what device?
Digital assets with monetary value (bank accounts, PayPal, digital wallets, cryptocurrencies, loyalty programs, or credit card points) should be included in your will and estate plan.
Other digital assets may not be transferable through your will (your documents, videos, photos, music, etc.), but you can still leave instructions on how to deal with them. Should someone download and save your photos? What about personal emails or messages? Do you want your social media profiles to be deleted or memorialized?
- Create general access protocols for passwords and backing up DAs stored in the cloud.
The protocols should be reviewed and updated periodically and communicated to your digital executor.
Although some people make a list of passwords, experts recommend using a password manager to manage many passwords in one spot — then you only need to remember one password, not hundreds. Many such managers allow family members and third parties to access your account after you die.
It’s also smart to back up DAs stored in the cloud, such as photos, videos, and important documents. Most cloud services block access at death.
- Actively curate your digital legacy, with a view to what you want left behind.
What you post online represents you. It really is a legacy, so be intentional. Incorporate periodic reviews as part of your ongoing routine.
Helpful Tools and Resources
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- Legacy features
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In 2021, Apple added a way for users to name one or more legacy contacts – essentially an executor to their iPhone and iCloud accounts – for people to access their devices and data after death. Google also has an inactive account tool that can be enabled to allow a trusted person to access their accounts if there’s been no activity for a certain period of time. Some social media accounts, such as Facebook, have legacy tools, too. For example, a user can select a person to oversee their account, such as accepting friend requests on behalf of their memorialized profile, or decide ahead of time if they want to permanently delete their page.
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- Legacy planning services and guides
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Legacy planning services help people leave their assets and property to their loved ones. While there are many such services offered by legal or financial firms, some are now including digital assets in their plans.
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- Everplans is a platform that organizes family documents and important account information and allows users to list what they want done after their deaths.
- Another digital legacy service, MyWishes, allows users to create a “social media will” to decide what happens to those accounts.
- The organization Death with Dignity offers a free Digital Estate Planning Guide.
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- Information on closing accounts
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- The Digital Legacy Association provides free guides on how to handle social media accounts.
- Everplans lists over 230 online accounts and services with instructions on closing them.
- Buried in Work provides information on closing accounts with many types of companies.
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Final Exit Network (FEN) is a network of dedicated professionals and caring, trained volunteers who support mentally competent adults as they navigate their end-of-life journey. Established in 2004, FEN seeks to educate qualified individuals in practical, peaceful ways to end their lives, offer a compassionate bedside presence and defend a person’s right to choose. For more information, go to www.finalexitnetwork.org.
Payments and donations are tax deductible to the full extent allowed by law. Final Exit Network is a 501(c)3 nonprofit organization.
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