USA.gov(aka “Government Made Easy”) under topics/money/personal-finance/wills begins with, “It’s unfortunate how many people believe that estate planning is only for wealthy people. People at all economic levels benefit from an estate plan.” The article on the site continues with a candid discussion of advance medical directives and wills, including rules to remember when writing a will and how to choose an executor. Tucked at the end of this article is a new section called, “Write a Social Media Will.” This section provides cutting-edge advice on perhaps the most necessary element of estate planning for many people today–that is, planning for digital assets after death.
The Social Media Will section begins by noting the prevalence of social media, stating that anyone “active online” should consider creating a document advising how he wants his online identity handled after his death. The posting describes this document as “like a social media will” and points out that people need an online executor to handle their email addresses, profiles and blogs, after death.
Further advice on writing this social media document includes reviewing privacy policies and terms and conditions of websites. Individuals should also decide how to handle their online profiles after death—cancel, keep or even memorialize. Moreover, individuals should give their social media executors a list of passwords and usernames. Finally, the article advises individuals to make arrangements for giving their online executors a death certificate.
The advice described above is highly practical, though perhaps some of the terms and documents should be clarified and broadened. Many individuals do have an online presence, and current law doesn’t always handle that presence well. Importantly, an online presence extends beyond social media and encompasses all things digital. For example, in addition to social media such as Facebook and Twitter, there are online banking accounts, PayPal and other types of digital assets. Many of these digital assets are located in clouds, while others are housed on local devices. To handle the disposition of digital assets after death, everyone should “Write a Digital Will.”
As noted on USA.gov, it’s vital to keep a list of digital assets and accounts and how to access them. The literature now refers to this list as a “digital asset inventory.” This inventory should list all digital assets and accounts and how to access them, including the assets’ purposes, usernames, passwords, etc. There are online services that will fill this custodial role. This asset inventory list could be invaluable for whoever needs to wrap up a decedent’s affairs, including identifying, accessing and transferring digital assets. Although more of a personal concern (and perhaps not always an economic concern), social media should be included on this list, along with how to access and handle the social media sites, as described in USA.gov.
Legally, there’s no such thing as an online executor, but the role envisioned by that term needs to rest with someone. The actual legal power lies with the executor or administrator appointed by the decedent’s state of residence. The will should give the executor sufficient power to handle digital assets and accounts and should give the executor the power to hire someone to help with those assets, particularly if the executor lacks the skills to deal with them. Articulating in a will the power for an executor to handle digital assets may prove critical, because it’s not clear what actual powers an executor has over digital assets. One would hope that broad-based state law executor powers would give an executor the ability to handle digital assets, but no one knows for sure.
At this time, only five states have laws affirmatively addressing digital assets and their care after death. The earliest of these laws–2005–focuses on email, which is ancient history in the digital world. Newer statutes have broader scopes. Also, several states are studying legislation, and these newer draft legislative proposals are even more encompassing. Moreover, the Uniform Laws Commission is studying digital assets legislation.
The difficulty of digital asset care post-death is exaggerated by the traditional laws of wills and property. Digital assets don’t fit within the definitions of tangible and intangible property, around which most wills are based. As a simple example, if a decedent gives his computer to his wife, does she get his email account and online bank accounts? Wills need to specify what to do with digital assets in clear, modern terms.
The other problem with digital assets is that many of them are hosted on a platform that has its own terms of services and other policies governing it. Typically, individuals agreed to these policies, without reading them, when they set up their digital accounts–remember “I Accept, Click.” Those terms of service can be critical after an individual’s death. For example, some account procedures will delete digital accounts if they learn of a user’s death, taking from the decedent’s family and heirs valuable information--either economically or emotionally. Others will deny access to the information, again causing difficulty for a decedent’s family and heirs. So individuals need to understand these terms of service. And while it’s not entirely clear who will win in a conflict between terms of services and an executor’s need for power to handle digital assets after death, those terms of service do exist—so giving the executor express powers in the will over digital assets may help the executor work within the terms of service.
While the USA.gov article focuses on social media executors, the same concerns apply to attorneys-in-fact, trustees and guardians. These fiduciaries similarly need powers to deal with digital assets. Admittedly, power is often given informally, for example, a family member or friend might know or guess a decedent’s password and handle the account. But one concern is that unauthorized individuals may accidentally run up against federal or state law hacking prohibitions and unwittingly be committing a crime.
Digital assets and their care in wills and related documents is a rapidly developing area of the law. A few horror stories have spurred it along, and a few more will accelerate developments in this area. The government site has taken a much-needed forward-thinking step by telling people to get their social media lives or more generally digital asset lives, in order, while they still can.