Digital Assets: A Cyber Crisis After a Death in the Family

"Everything we needed to get her affairs in order was on her phone. Her contacts would tell us who to reach out to about the memorial service. Her email would tell us whether she had made plans we needed to cancel. Her finance apps would tell us whether she had been paying bills electronically."

After Leslie Berlin's mother died, "breaking into her phone was the only way to put together the pieces of her digital life." See the full article in The New York Times.

Have you ever thought about what happens to your email and social media accounts after your death? Or if you became incapacitated, would you want your agent under a power of attorney to have access to them? Traditionally, the executor of your estate or agent under a power of attorney (a fiduciary) stands in your shoes. But digital assets have complicated these classic notions. While the law can often be slow to catch up to technology, it is important to consider your digital assets as part of your estate planning.

Estate Planning for Your Digital Assets

First, what is a digital asset? In this context it includes email accounts, social media accounts, online storage services, online banking, computer files, and other electronic records. Unless you specifically prohibit it, the custodian of electronic records (such as Google) must disclose those records to your fiduciary, other than the content of emails and other electronic communications. An example of information that your fiduciary can obtain would be calendar and contact information, which may be helpful in notifying friends and family of your passing.

If you want your fiduciary to be able to obtain the content of email and other electronic communications, you would need to specifically authorize your fiduciary to do so in your will or power of attorney. Otherwise, they can only obtain catalog information, which for email would include the sender, recipient, date, and time of the email. Keep in mind that these procedures do not allow your fiduciary to login to your account and act as if he or she were you.

Of course, aside from the formal ways that your fiduciaries can access your digital assets, you should consider providing your trusted loved ones with usernames and passwords for your important online accounts. This will allow them to have access to your accounts without going through the time and expense of a formal legal process. Simply writing a list may be the easiest way, but it is less secure and requires frequent updating as passwords change and you add new accounts. A secure password manager (such as Lastpass or Dashlane) may be a better alternative.

Some online providers even have special tools for you to indicate your wishes. Google has the Inactive Account Manager, which lets you customize who can have access to your information and when (or automatically delete your account). Facebook allows you to designate a Legacy Contact, who, upon your death, can have limited access to your account, and even delete it. Upon your passing, your Facebook page can also be memorialized, allowing fiends and family to share memories.

An updated will and power of attorney is important to make sure that your digital assets are handled the way you want them to be. As laws and technologies change, your estate planning documents need to change with them.

As always, contact us if you have any questions. Our Elder Law attorneys are always available to address your questions and concerns. Call us at 631.390.5000 or click here.