Alot of ink, real and virtual, is being spilled about the need for managing our digital assets after our demise.
Of course, there are many digital activities (social, political, and sexual) that we fully intend to take to the grave with us, and we demand complete confidentiality and proper handling by the administrators of those assets. The Terms of Service, (“TOS”) Agreements which come with all our cyber accounts are evolving to give us more choices over the handling of these resources upon death or incapacity, but for the most part, take the cautious road and terminate all access to accounts by heirs, agents, and fiduciaries. That was a good starting point, but as our physical and on-line lives become more enmeshed, more options are essential. For a good primer: http://news.morningstar.com/articlenet/article.aspx?id=613476
The law in this area is developing quickly, but remains almost nonexistent. As pointed out by Jim Lamm in his recent exhaustive analysis of the law (http://www.digitalpassing.com/), seven states have acted to pass laws in this area. Legislation has been introduced in others (such as New York). Jim points out that recent federal laws may not inhibit the efficacy of suitable legislation at the state level, which is good news (if he is right). We must recognize, however, that accessing a deceased persons digital assets after their passing is likely to be a crime, so we must be careful and work to support more comprehensive legislation protecting our digital privacy while allowing us to leave a digital legacy to our heirs which may be more significant than the physical legacy (emotionally, if not financially).
Most of the state laws that exist or are contemplated have limited goals, allowing our authorized fiduciaries access to our digital accounts-but generally, contrary provisions in the TOS will prevail-leaving the burden of addressing this issue to the various digital service providers. As noted in previous posts by the Will Doctor, there are many creative and powerful tools being conceived and implemented, for us to pass digital resources for use by our loved ones after our death-including pictures, videos, audios, writing, and…..who knows. Meantime, the focus is on our email, facebook and other accounts, which will contain information of great value to our loved ones after we are gone.
Lets not get into the issue of whether its a good idea to let someone fiddle with our facebook account after we go, or look at all our emails-that depends on the circumstances. Assuming the answer is yes, perhaps the best way to deal with it until the laws are more mature is to take a risk and utilize various forms of password vaults which are available to unlock our digital life after our physical death. Any password manager functions like this, and other more robust solutions (like the Will Doctor’s Legal Vault) offer the ability to store our intentions, passwords, and legal documents to those we choose to have the “master” password.
The Will Doctor emphasizes that the Trusts and Wills used to broadcast your intentions and implement your custom dispositive scheme should contain comprehensive language regarding your digital legacy, and its management, access and control after your death. The assets which you organize and inventory as part of your estate planning (however formal or informal) should include a thorough identification of digital accounts (which are not anonymous or confidential), and be noted as to the treatment of each.