Online Accounts After Death
by Attorney Sean O'Bryan
As more and more people live their lives online, the question of what happens to online assets and records after someone dies is becoming more important – and confusing. I sit down at least 1 time each week with a family to settle an estate of someone who has recently died. The issue of online account access can create some real challenges for surviving family members.
Consider all the things that you might “own” on the Internet – thousands of photos and e-mails, Facebook and other social media accounts, music libraries, blogs, genealogy records, domain names, and much more.
Then consider how many financial accounts you have or manage online – including PayPal and other accounts with credit balances, as well as online accounts with detailed financial records, automatic bill-paying processes, etc.
If you haven’t given any thought to what will become of these things – and who will manage them after you’re gone – it’s probably a good time to do so.
Increasingly, executors are being faced with very difficult questions about what to do with these online assets. How can they access them? To whom do they belong? What would the deceased loved one have wanted?
The whole issue is so new that there aren’t many easy answers. In fact, only a handful of states – including Connecticut, Idaho, Indiana, Oklahoma and Rhode Island – have any laws at all governing executors’ ability to handle online property. Michigan currently has no law regarding online assets.
So what should you do to make things easier for your heirs?
▶ A good start is to put together a list of everything online that has value, sentimental or otherwise. Then decide what you want to happen to it.
▶ Write the list down, so that if you were to pass away, your executor would know what assets exist. You might want to include passwords, and keep the list with your will. Be sure to update it from time to time. (However, it’s never a good idea to put your passwords in the will itself – that’s because wills can become public records, giving the whole world access to your passwords.)
▶ Tell your executor what you want him or her to do regarding the assets. Do you want your social media accounts deleted, or preserved as a memorial? Do you want your old e-mails destroyed, or copied for someone? Who should get photos, songs, and other materials?
If your executor isn’t particularly tech-savvy, you might want to appoint a separate “digital executor” to handle your online assets.
▶ Keep in mind that you might not have unlimited say over what happens. That’s because, while you may think you “own” material that’s online, your ability to control it is often limited by the “Terms of Service” agreement you clicked on when you first signed up with a service provider.
So while you might want to leave a library of thousands of songs on iTunes to someone, this might or might not be permitted by the iTunes service agreement.
▶ If an account is important to you, you might want to contact the service provider and ask about its rules. For instance, Google now lets you choose what you want to happen to your e-mail if you pass away. But if you haven’t made a choice within Google itself, and you just write something in your will, it’s not clear that Google will abide by it.
In some cases, it might be possible to put a license agreement with a service provider into a trust, so that the “account” can continue after your death.
▶ Another issue is what happens if an executor uses a password to access a financial account after someone dies. The executor might have a legal right to access and use the account. But he or she might also be considered to have wrongfully accessed the account by using someone else’s password in order to impersonate them – even if the executor is doing something as innocent as paying ongoing bills.
It gets even more complicated if someone other than an executor – such as a family member – uses a deceased person’s password. In general, it’s better to contact the institution about the situation first, rather than simply logging in as someone else.