Digital Planning: Online Life, After Death
For those already wise enough to set up an estate plan with an attorney, you’ve made a great decision. With any typical estate plan, the idea is that your assets and affairs will be relatively easy to wind down, manage and distribute to your loved ones upon your death.
The Internet Stay Undefeated
An often overlooked aspect of estate planning that is becoming more relevant is the legacy impact of your online accounts. These accounts contain a treasure trove of personal information, data, photos and other valuable assets such as digital downloads, reward points, vouchers, and cryptocurrency.
Unless you proactively plan for these digital accounts, your online life - after passing - might continue on indefinitely in ways you didn’t envision, with no one having any power to change it.
Your Digital Footprint and Online Life
Think about the dozens, if not hundreds, of online accounts you’ve signed up for just in the past year. This list will continue to grow, and grow, and grow, especially as technology makes business and commerce easier to transact over the internet. We are just at the beginning stages of the digital information dump. Almost everything we know and touch and engage with now has some sort of online portal with an account that points back to you.
When you pass away, you need a plan to wrap up loose ends and shut down those accounts. If you haven’t left detailed instructions and information about how to access email, social media, and other online accounts, you’ve made the executor’s job for your estate extremely more difficult, time consuming, and in some cases, impossible to take care of. This is for a variety of reasons, oftentimes outside of anyone’s hands.
For example, not only might your executor (aka personal representative or successor trustee) not have correct usernames or passwords, but they also might not even know where to look, what accounts you’ve opened, and where you might be lingering digitally. It’s a very vast, wide, and deep web out there. Give your executor something to work with or you might be lost out there forever.
Social Media Accounts When You Pass Away
Most alarming, at the moment at least, is the fact that there is no uniform standard for how all of our online accounts are handled when we pass away. As it currently stands, each platform, website, or service – Google, Facebook & Yahoo for example – has their own set of policies, procedures, and options for how an account is dealt with. Moreover, they also have different rules for who might be able to speak on your behalf once you pass away. These policies and rules are typically found in the services “onsite” digital manager: its Terms & Conditions. You know, that dense legalese that you just scroll down and accept to get going. As someone who writes terms and conditions, that stuff does actually matter (sometimes at least!).
Let’s looks at three examples of just how different some of the biggest service providers treat your death.
Google: Interactive Account Manager
Google has pioneered an option referred to as the Inactive Account Manager, which allows any account holder (i.e. you and me) to designate a specific person to be contacted and given account access to your account upon death or incapacity. Many estate planning attorneys have lauded this move, indicating that even though Google’s system isn’t perfect, it certainly encourages planning ahead of time, which is one of the really crucial ingredients to the successful execution of an estate plan that accounts for digital assets and legacy.
The Inactive Account Manager function is only one of several options that Google offers. In the event a person passes away without having activated the Inactive Account Manager tool, a deceased person’s personal representative may contact Google and request that (i) the account be closed, (ii) the account’s funds be dispersed, and/or (iii) the account’s data be made accessible.
Facebook: Legacy Contact
Facebook provides its users with two options upon their death. Users can choose to either (i) appoint a Legacy Contact to look after a version of their profile known as a “memorialized account” or (ii) have their account permanently deleted from Facebook. The default rule, if you don't choose to do anything, is for your account to be “memorialized” when Facebook becomes aware of your passing.
Memorialized accounts are a place for friends and family to gather and share memories after a person has passed away. Any of you past shared content remains visible to the Facebook audience originally shared with (example: pictures and posts); however such profiles do not appear in public spaces such as the creepy People You Now section, nor will there be a birthday reminder sent out. Importantly, if you do not appoint a Legacy Contact, then your memorialized profile cannot ever be changed.
A Legacy Contact is someone you choose to look after your account if it's memorialized. Facebook strongly suggests setting a Legacy Contact so your account can be managed once it's memorialized. A Legacy Contact can accept friend requests on behalf of a memorialized account, pin a tribute post to the profile, and change the profile picture and cover photo. If the memorialized account has an area for tributes, a Legacy Contact will be able to decide who can see and who can post tributes.
Alternatively, should you choose to have your account permanently deleted, then once someone let’s Facebook know you’ve passed away, all of your messages, photos, posts, comments, reactions and info will be immediately and permanently removed from Facebook.
Yahoo: They are still working on it
Once Yahoo is notified or becomes aware that someone has passed, their policy is scorched earth. They completely delete that person’s accounts (including its family of company accounts, such as Tumbler) and all associated data. The user (and their family) are not given any another option. Once you die in the real world, you are dead to Yahoo as well. Thus, anything contained in emails, such as other account logins that might lead to other valuable information and accounts, including possible photos and other assets under the Yahoo umbrella, will be deleted. Bummer.
Google and Yahoo’s respective approaches represent both ends of the spectrum. Many other online-based platforms offer options somewhere in between these two.
Incapacity: Policies Still in Development
The typical document requested by online platforms to confirm the death of a person is their death certificate. This presents a problem if you are not deceased yet, but incapacitated. Twitter, Yahoo, Tumblr, and Instagram do not mention any options for dealing with incapacity at all. While it is possible that they may handle these issues on a case-by-case basis, but should anyone be tasked with handling the disposition of 5, 10, or even 20+ online accounts on a “case-by-case” basis, in the immediate aftermath of an incident that leaves a dear friend or family member incapacitated? There is still some work to do for the incapacitated adult in these scenarios.
Estate Planning for Digital Assets
As digital assets and online accounts become more integrated into our everyday lives, we can only hope that the process for handling accounts post-death or incapacity become more streamlined and standardized over time. In the meantime, as with any aspect of estate planning, preparation is best way to ensure your wishes for your online presence are carried out after you are gone.
First, make sure to provide your personal representative the power to manage your online accounts and digital assets in your estate plan documents (i.e. in your Will or Trust documents). Some states, such as Michigan, have already passed laws that give your personal representative and/or trustee this power. However, specifically referencing the same can’t hurt.
It’s also possible that the people you’ve entrusted to handle your financial, medical and estate affairs are simply not technologically qualified or savvy enough to navigate the world of social media, email, and other online accounts. So certainly, in those cases, it may make sense to enlist someone else to serve as your “digital guardian” in charge of handling your online assets and affairs.
More immediately, it would be wise to look at some of the large accounts we described above and take action. Go ahead and appoint an Inactive Account Manager for any Google accounts you may have, as well as a Legacy Contact on Facebook (or opt to have your account permanently deleted). As for any Yahoo accounts, well, you get what you get for still having a Yahoo account (partially joking I guess; it might be time to switch over to a more forgiving service provider unless you don’t want anyone fishing through your emails after you’ve passed).
A sample provision in your estate planning documents might look something like this:
Except as I have provided for using online tools for my Google and Facebook accounts (and any other digital account in which I have used an online tool), my Personal Representative shall have the power to access, handle, distribute, and dispose of any and all of my digital assets (including the content thereof).
The above discussion is just one small sliver of your digital life after death.
Besides social network and email accounts, the internet is home to other valuable digital assets such as your:
financial accounts (bank and investment accounts, PayPal, Amazon, WePay, Coinbase, etc.),
cloud storage accounts (Dropbox, Apple iCloud, Microsoft OneDrive, Google Drive etc.),
digital photo accounts (Google Photos, Shutterfly, Flickr, Phanfare, SmugMug, etc.),
music and video accounts (iTunes, Google Play, eMusic, Amazon MP3, Rhapsody, etc.),
online gambling accounts (Fantasy Sports sites, BetOnline, MyBookie, etc),
website hosting accounts (Yahoo!, GoDaddy, Name, JustHost, etc.),
auction site accounts (eBay, eBid, Bonanza, etc.),
dating sites (eHarmony, Match, Zoosk, etc.),
gaming sites (World of Warcraft, Lord of the Rings, Guild Wars, etc.). The list can go on and one
social media accounts (Instagram, Facebook, Tik Tok, Snapchat, LinkedIn)
It’s only 2020. Be on the lookout for more discussion on this evolving and important topic soon.