Digital Estate Planning and the Online Afterlife

Digital Estate Planning

June 15, 2015

Ghosts really do exist, at least online. Given the close resemblance between traditional Western narratives of the afterlife and the verbiage of cloud computing, it’s not surprising that digital ghosts have been haunting the online landscape for years now.

Most of us know people who have died, yet their Facebook pages and Twitter accounts remain active. In death do we not part, at least as far as social media is concerned. The only way to ensure that your digital ghost does not linger online after your death is to take proactive legal steps to preempt cyber purgatory. However, the procedure for digital estate planning is not so simple.

Digital Estate Planning for Digital Assets

Digital presence has become the hallmark of the new millennium. We all have pictures stored on our smartphones from which we build our personal brands online.

We have Twitter accounts, Facebook accounts, and Instagram accounts. We have online banks, online currency, online real estate, virtual gaming property, shopping and auction accounts, and travel accounts. We have digital music libraries, photos, videos, client lists, and other digital files stored on the cloud and on our personal network of computers, smartphones, and tablet devices.

Ultimately, all our online information collects and deposits on various servers around the world. In effect, the average person can project herself beyond the confines of her physical self, far beyond any other time in the history of human beings. That makes asset consolidation after death particularly troublesome.

With so many digital assets attributable to our personal estates, death has become even more complicated a legal process than it has ever been. Federal and state law is evolving in a complex way in key digital arenas like fraud, abuse, copyright, privacy, data protection, and terms of service agreements for online providers. Fiduciaries, or legal representatives appointed to distribute a person’s estate after death, are finding burdensome limitations to access their clients’ digital assets after they die.

Step One: Know Your Online Credentials

The first step to accessing digital information requires knowing a person’s username and password for a certain service. In order for a fiduciary to access a decedent’s account, he or she must have the decedent’s online credentials. Service providers are highly unlikely to allow access to an account without a username or password (as many forgetful users begrudgingly know). Because recovering or resetting usernames and passwords usually requires email access, bypassing security questions, or other personal information, it is much easier to access an account with the online credentials than without them. In fact, lacking this information may present an insurmountable hurdle to fiduciaries.

Password repository services offer a solution to the problem of recovering online credentials. While some people may be able to keep an ongoing list of their usernames and passwords for different accounts, new services like Password Box and 1Password have arrived to provide a platform for storing account information behind encryption. Password Box even allows a user to designate an heir so that his or her information may pass on with the user’s death. A death certificate will be necessary to authenticate this eventuality, but these services suggest that the ease provided to a fiduciary managing the deceased user’s estate justifies the inconvenience.

Beyond password repositories, new financial services are emerging that allow for the consolidation and storage of digital assets and digital copies of traditional assets like wills, trusts, and estates. For example, LegacyShield offers its service with a guarantee of protection with cyber insurance in the case of a data breach. In addition to storage of assets, the website offers online credential storage, space for direction about what a user wants done with his or her information after death, and backup for family heirlooms like photos and videos of family. Similar services should continue to arise as the field of digital estate planning continues to grow.

Second Step: Social Media Accounts

The second step to digital estate planning specifically deals with social media accounts. Different services have developed different protocols for dealing with the deaths of users.

Facebook, for example, recently introduced a feature that allows users to designate a legacy contact. The legacy contact will be able to download archives of profile information but will not be able to operate the account as if it were his or her own. The legacy contact will have some limited control over the user’s page, like posting memorial information or changing the profile picture, cover photo and accepting new friend requests.

Twitter, on the other hand, does not allow anyone to take over another user’s account in any case, though requests can be made by third parties for a deceased user’s account to be removed. To do so, Twitter requires more information, like identification of the requester and the death certificate of the deceased.

Like Twitter, Instagram also requires some extensive verification of a user’s death for removal of an account.  The service also provides the option of a memorialization process that freezes the account but allows the account to continue being viewed.

Third Step: Digital Data

The third step to digital estate planning might be the most crucial, that is, recovering digital data from major providers like Apple and Google. Apple has a case-by-case policy for issues arising from users’ deaths. For instance, to restore a device to its factory settings and remove all prior data for use by a new user, only a person who has the death certificate of the original user and a document naming him or her the executrix of the deceased’s estate can file a request. To access the stored data of a deceased user, not even Apple can access it without the password if the data is only located on a device running IOS 8.0 or later. If the data, like a photo collection, is backed up in the cloud, then Apple can release it, but it will probably require a court order.

Google, on the other hand, has provided a relatively innovative solution to the issue of digital estate planning. Users can appoint Inactive Account Managers to receive access to a user’s data after his or her death. IAMs must first provide proof of death to Google, and after doing so the IAM cannot use the accounts of the deceased as if they were his or her own. Alternatively, users can elect for automatic deletion of all their data after a certain period of time. Absent the predetermination of either an IAM or account deletion by a user prior to his or her death, Google does have a procedure available for data recovery by third parties, but such recovery does require extensive documentation.

Step Four: Wireless Carriers

This final step for digital estate planning involves contracted wireless carriers like Verizon, AT&T, Sprint, and T-Mobile. Verizon and AT&T allow for an account owner to request disconnects in the event of death of a user. If the deceased was the account owner, a third party can request the account be disconnected with the use of the decedent’s social security number. Alternatively, a third party may keep the account active by assuming financial responsibility for the contract.

On the other hand, Sprint and T-Mobile require more extensive documentation for proof of death of a user in order to disconnect a contracted account. Third parties requesting cancellation must provide the date of death or last usage date, the phone number and account number, name and social security number of the deceased account owner, the requestor’s contact information, and the contact information for a fiduciary. Additionally, Sprint requires a death certificate, obituary, funeral card, probate letter, or legal document from an attorney or court to verify the user’s death.

Alternatively, following Verizon and AT&T, the requester can continue use of the decedent’s number if financial liability for the account is assumed.

Digital Salvation? No Guarantee

Ultimately, digital presence provides the most publically accessible route to life after death. By neglecting to plan for the distribution of one’s digital assets after death, a person can pretty much guarantee a persistent online presence.

Without express intent of the decedent, a fiduciary faces a complex web of services and providers that must be navigated to resolve the decedent’s online presence and properly distribute the decedent’s digital assets. However, at this point, there is no guarantee that all assets will be recoverable, even with tenacious legal assistance, after death.

As state legislatures and Congress grapple with the sheer complexity of digital asset distribution, the best thing a person in possession of digital assets can do is to use a trust for proper allocation of his or her digital assets after death. While no guarantee of digital salvation, digital estate planning gives the best shot for digital peace for online users after death.

Otherwise, the ghost in the machine promises to remain cycling ad infinitum, or at least until the law catches up to the new millennium’s rapid advancement into the vast pioneer of the digital landscape.