By Brett Clark
Hopefully you have a will and put your affairs in order. But have you made arrangements for your digital life? Your e-mail, blog, online bank accounts, Facebook or Google Documents? Not many have. This has led to an awkward stalemate between the digital empire and the bereaved survivors of its users. Most of us have a general expectation that our social networks and e-mail providers will keep access to our private information restricted. Virtually every service online these days requires a username and password. What many of us do not realize is that if something happens to us, our families will have no success accessing these accounts.
Lance Corporal Justin Ellsworth is an example that has received much attention. Ellsworth was a Marine serving in Iraq. Like most soldiers, he kept in contact with his family through e-mail. When Ellsworth was killed by a roadside bomb in 2004, his father requested access to Ellsworth’s e-mail account to fulfill the family’s wish of reading, seeing and knowing his last words, pictures and thoughts from the front lines in Iraq. Yahoo!, Ellsworth’s e-mail provider, repeatedly rejected every request. The Ellsworth family believes that the e-mail is Justin’s personal property, which would pass to his estate after his death. Others, including Yahoo!, maintain that the company has a contractual obligation to maintain Justin’s confidentiality-dead or alive.
As a legal issue, the question remains unresolved. Some states are attempting to ease the process by legislating a solution. A new law in Oklahoma took effect in November that grants estate executors the power to take control of a decedent’s online persona, but even that statute only allows an executor access “where otherwise authorized.” In other words, if the decedent didn’t anticipate the problem, the statute is probably of no help. The best way to avoid the problem is to prepare.
Since so much of our lives take place in the digital world, estate planning attorneys should assist their clients in preparing for digital death. Since the law has yet to catch up with the internet and companies like Facebook and Google are showing no signs of relenting on their positions, lawyers should consider advising their clients to plan ahead. There are multiple options available:
1. Maintain a list of usernames and passwords with a trusted individual-preferably the proposed personal representative. This way, your client’s personal representative already has easy access not only to his digital legacy and can preserve or destroy it in an accord the client’s wishes.
2. Keep a list in a safe deposit box. The idea of trusting someone with all of one’s passwords wouldn’t be an acceptable option for many. Keeping a list in a safe deposit box or some other protected location is just as easy and effective.
3. Hire a “digital executor.” There are already businesses designed to remedy this precise problem. Companies like Entrustet will allow a person to create a secure, updateable list of all important digital assets and decide what should be done with them after death, either having them passed on to an heir or deleted by the executor. Entrustet obviates the need to contact a proposed personal representative or visit a bank vault every time you update your passwords.
This issue is only going to become more important as time goes on. Estate planners would be well advised to make sure their clients are ready.