In an age of social media and instant communication via emails, most people may not consider what will happen to their online accounts after death. Currently, there are roughly 30 million Facebook accounts still active that belong to people who are deceased. Likewise, it is estimated the about 1.5 million Facebook users and close to the same amount of Twitter users die each year. The question that lingers is what actually happens to these digital assets when you die and how can you transfer them properly to preserve your digital legacy?
The reason this is such an interesting question is because each state has their own set of laws governing the transfer of these types of assets and each email/social media provider likewise has their own set of proscribed rules governing access on death. This issue came to a head in 2005 when John Ellsworth wanted access to his deceased son, Justin Ellsworth’s, Yahoo! email account in order to recover emails and photos sent and received during his son’s military duty in Iraq. Yahoo!’s terms state that a user’s email account and all of its contents terminate at death with no right of survivorship or right of transferability. John was able to receive his son’s email contents only after a probate court in Michigan made the order.
Different providers have different terms though. Google allows you to designate who can access your account (including Google Plus, Gmail, etc.) or whether you want your data deleted after three, six, or twelve months after death. Facebook does not give access to anyone but allows family members to contact Facebook so that the deceased’s account can be memorialized, meaning no one can login, add or delete friends, and that person will not be suggested to other people to add as a friend nor will their birthday show up as a notification to others. Twitter allows the deceased’s family to request for the account to be deactivated as long as they can show a death certificate and details that show the account belongs to the deceased. In theory, any family member or friend that has the ability to get or knowledge of the deceased’s passwords could log on to those accounts themselves; however, under the federal Computer Fraud and Abuse Act this may violate federal law and the Stored Communications Act may prevent someone from sharing the deceased’s information available on these digital assets.
The law over the ability to transfer digital assets is not uniform and changes from state to state. To try to make this law uniform, the Uniform Law Commission approved the Uniform Fiduciary Access to Digital Assets Act on July 16, 2014 that would allow fiduciaries/executors of the deceased to access and control digital assets while still respecting the privacy of the deceased. Each state has to individually accept this act and Delaware was the first to do so. Currently eight states including Rhode Island, Connecticut, Virginia, Indiana, Oklahoma, Idaho, Nevada, and Louisiana have their own laws that allow for this type of access in a more restricted nature than the Uniform Fiduciary Access to Digital Assets Act. If you happen to live in one of these states then the transfer of such assets will transfer pursuant to the statutes in that state.
What do you do if a transfer of digital assets is not protected in your state by statute? Like stated above, first you should look at the policy of the individual email or social media provider. If this policy is ok with you, then just make your relatives or close friends aware of your accounts. It is also smart to leave with family or friends your passwords and access codes for such assets to make things easier. If you do not want to leave this information with others immediately you could put it in a secure place that your executors could reach after your death, but make sure its location and instructions associated with such assets are clear. To avoid the violation of federal law or different companies’ policies, the last and most likely best thing to do is to specifically designate in your will (or a trust to avoid probate and possibly have more control) where these digital assets or their passwords/access codes are located, who can access them, and what that person is able to do with such assets. This may or may not help depending on where you live and what company you are dealing with, but this, at least for now, is the best way to designate how these digital assets that will live after you are gone should be transferred and handled.
* Alec Roberson is a second year law student at Wake Forest University School of Law and hopes to practice sports or tax law after graduation. He holds a Bachelor of Arts in Political Science and a Bachelor of Science in Accountancy from the University of North Carolina at Wilmington