Q. I do most of my banking and bill paying over the Internet, participate in Facebook and exchange e-mails with friends and family. What would happen to these online accounts when I die or if I became disabled and could no longer manage them?
A. Great question. As we move further into the 21st century, more and more of our lives are moving into the digital realm. This includes friendships, networking, business and banking. While this gives us instant access to our “digital assets” and on-line friends on a 24/7 basis, the downside is that a large portions of our lives are locked away behind password-protected accounts. How would our loved ones, executor or trustee access this information, notify our online friends and take other steps to freeze, transfer or terminate these accounts when they are protected by user names and passwords known only to us?
Unfortunately, unless you have taken appropriate steps during lifetime, it could be very difficult for your loved ones to access this information, notify your “friends”, and memorialize or terminate your accounts. In one notable case decided in Michigan, the parents of a deceased Iraqi marine had to sue Yahoo in order to secure access to their son’s e-mails.
To address these matters, I have several recommendations:
1) Make provision for your loved ones to get access to this information upon your incapacity or death. You might do this simply by creating, and keeping current, a list of user-names and passwords and keeping it in a place known to your loved ones. Alternatively, you might sign on with companies who offer to safely secure your digital property and grant access to your friends and loved ones upon your death or disability. One of them is Legacy Locker. Others include Entrustet and AssetLock. You might even arrange to send an e-mail to your loved ones in the future, even after you’re gone, such as your grandchild’s 16th birthday. Check out the GreatGoodbye and EternityMessage. However, in order to serve their purpose, the online services you select would need to survive you.
2) Include in your Durable Power Of Attorney, Will and/or Living Trust special provisions authorizing your agent, executor or trustee to access and manage these assets upon your incapacity or demise. Caution: it is not yet clear under California law that user-names and passwords are a part of your “estate” and subject to the control of your nominee. However, in anticipation of the law addressing this issue in the future, I suggest including appropriate provisions in your estate planning documents now, so that when California law does reach these issues you will be prepared.
3) Check your favorite websites and see if they have procedures in place to deal with incapacity or death. For example, Facebook, the world’s most popular online social network, allows someone to “Report a Deceased Person’s Profile”. Upon satisfactory proof of death, the decedent’s page can be “memorialized” so that only confirmed friends continue to have access to the decedent’s “wall”, which may remain on Facebook indefinitely as a memorial to the deceased.
Most importantly, think about these issues now and discuss them with your loved ones. Remember, also, that none of us is immortal and we may or may not wish our online presence to continue after our demise. When you next update your estate planning documents, make it a point to discuss these issues with your estate planning or elder law attorney.
This article originally appeared in the Castro Valley Forum and the San Leandro Times on May 16 and 17, 2012.