When you die, the executor of your estate begins the task of managing and distributing your assets. In the past, financial accounts, real estate and various chattels such as cars, furniture, personal property and other tangible items were affected. The advent of the information age, however, finds individuals storing heritable information online in the form of accounts and personal data.
Personal and sentimental items such as email accounts, photographs, videos and messages comprise much of this online data. However, some online records, including online banking and bill paying accounts, music and video subscription services and online trading or stock accounts, may have financial value.
To complicate matters, each category of online items has a set of rules and regulations governing inheritance, privacy and distribution issues. The lack of consistency across platforms’ policies has made life increasingly difficult for grieving family members attempting to delete, retrieve or redistribute online property.
Online items of a sentimental nature have gotten the lion’s share of press attention. In January 2016, for example, it was reported that Apple refused to give a widow her dead husband’s password, even after she provided the serial numbers for the iPad in question. Apple maintained that she needed a court order for them to release the password, and the company stuck to its guns until the widow reached out to CBC’s “Go Public.” At that point, she got the passwords and an apology from Apple.
In some cases, access to accounts of deceased family members could prove essential to healing or understanding a decedent’s actions. In 2011, the parents of a boy who committed suicide, tried to access their son’s Facebook account to more clearly understand why he’d taken his life. Even after they obtained a court order, Facebook fought their attempts to recover materials from his account.
Ultimately, it took the parents one year of legal conflict to win only limited access. This experience prompted them to push for legislation that would allow parents and legal guardians to access their children’s online accounts, a project which culminated in the Virginia General Assembly's unanimous adoption of House Bill 1477, the Uniform Fiduciary Access to Digital Assets Act in the USA.
It could be partially due to situations such as this family that in February 2015, Facebook announced that users could designate legacy contacts. A legacy contact is an individual who would have access to your account after your death to pin a post, accept friend requests and update your profile. This person wouldn’t have access to your private posts, but he or she would be able to manage your profile after your death. It’s a step forward, but family members and heirs still can't retrieve photos or videos stored in your account if they aren’t public content.
Twitter has a more lenient policy. Its support centre clarifies that you may have a deceased user’s account removed by providing some basic information about the decedent, a copy of your identification and a copy of a death certificate. It will also consider removing images of deceased loved ones across the platform at the request of the immediate family. However, Twitter restricts access to the deceased’s account, and it may deny any application for media removal, although it claims to consider these requests.
Be warned if you store data in the cloud. iCloud’s Terms and Conditions state that you agree your account is “non-transferable.” Non-transferable, in this case, means that Apple terminates rights to your Apple ID and content in your account after your death. While heirs may not retrieve content, they can terminate the account and have the content deleted if they have a copy of the death certificate. However, personal photos or videos may be lost forever if they are stored in the cloud rather than on a computer or accessory drive.
So, Facebook, Twitter and iCloud may keep your sentimental items, but what about your music and movies? Apple says heirs have no right to your music or video collections after you die. According to the company, you haven't bought a license to the tangible music or film; you've only bought a license to listen or watch, and that license dissolves upon your death. Apple states this philosophy in Section B of its service agreement: “iTunes is the provider of the Service, which permits you to purchase or rent a license for digital content ("iTunes Products") for end user use only under the terms and conditions set forth in this Agreement.”
Some companies highlight the difference between your rights for tangible items (including CDs and record albums) and intangible ones (such as iTunes). The differences are startling, and they’re overlooked by consumers who click the “I agree” button when accepting various terms and conditions in advance of a sale.
Consumers of online services, whether that be social media, cloud services, banking or online purchasing, need to direct the fate of personal accounts well before they die. Concerned individuals should leave passwords and other information with trusted family members or a family attorney and set up accounts to allow family access after death.
Obviously, there’s much regulation needed for online industries to resolve after-death issues in a fair, balanced and humane way. The responsibilities and rights of heirs cannot go ignored, even if there is a valid need to protect the privacy of the deceased.
With young adults most likely to have online accounts and die intestate, they are at the highest risk for privacy violations of their online assets. In this case, the contractual law outlined in the service provider’s terms and conditions will govern what is to be done with the account. Property laws would prevail if the information is treated as property, resulting in heirs getting access to what could be sensitive or damaging information.
The online community needs a global definition of digital assets so these assets may be properly categorized as governed by contractual or property laws. Only then can treatment of digital property be addressed in cases of death both with and without a will. For circumstances involving music and video downloads, further action is needed to protect consumers’ rights to gift or bestow digital collections to legally appointed heirs, as would be done with similar tangible items.
Online service providers should distribute accounts and digital materials of deceased owners according to their wishes. A standard, enforceable method of designating heirs, fiduciaries or account managers must be developed. A universal set of definitions and formulae is the only answer to this predicament, short of the onerous task of waiting for case law to accumulate to force the issue with online giants.
Until we have such a set of definitions, individuals should consider how to distribute their digital legacies and know the steps they must take to see their wishes carried out.
This is mainly about social media. What about physical, financial assets? If you have a crypto-wallet or other digital assets online, how do other people access them, if needed? How long will it take people to access?
A digital will is needed to ensure that your online presence is put into the right hands when you die. If no one can find anything or have access, how will your loved ones receive?
We’re here to help and answer any question you might have. We look forward to hearing from you.