Children, assets, estranged relatives. These are the common issues that testators address when writing a last will and testament. Who should raise the kids? Who can manage the money? Who should have nothing to do with my estate and my legacy? In recent years, another concern has been determining who will control, review, and collect one’s electronic accounts and assets upon death.
Social media, email, and online business transactions are not just for millennials. Especially given the current pandemic, people pay bills, manage assets, and communicate with others through their screens and keyboards. Usernames and passwords have replaced handshakes and voices. Aside from property management, the internet has opened a world of interaction for individuals, connecting us more quickly and frequently than ever before.
How often do we find out about a tragedy (or a celebration) from a Facebook post or an Instagram feed? How many times has someone’s social media account gone silent for too long, and it is discovered that she is in distress, or worse.
When someone passes away, a fiduciary is appointed to manage the decedent’s affairs. This is an executor if someone dies with a last will and testament or an administrator if not. Sometimes, if assets are held jointly or with a named beneficiary, a fiduciary does not even have to be appointed for an estate, rather the surviving owner or beneficiary produces proof of death, likely completes some forms, and receives the corpus of the account.
Marshaling assets is easy when they can be seen or touched. Collecting the jewelry, reviewing the bank statements, and producing the deed are usually straightforward and easy for a fiduciary to accomplish. Rounding up a decedent’s social media accounts, apps, photos, bank accounts, and liabilities can be tedious, especially when the usernames and passwords are stuck in an inaccessible computer, phone, or tablet.
In recent years, it has become fairly common to include clauses in a last will and testament that give authority to an executor to control a decedent’s digital assets. This includes the power to access, change, use, cancel, or dispose of a digital device or digital account that is held on a digital or electronic device. These include email, social network, healthcare, file sharing, credit card, utility, and service accounts. Further, an executor can be given control of data, games, texts, music, miles, points, records, and photos. This kind of a provision is imperative for the executor who is trying to piece together the decedent’s financial and social lives. Many powers of attorney also include such language. A power of attorney is a document used while someone is alive to control finances in the event of incapacity. Especially during the scary times we live in, if someone were to become incapacitated, it is important for an appointed agent to have access to those assets and information, including electronic accounts.
The question becomes what happens if someone passes away without a last will or becomes incapacitated without a power of attorney and their files need to be accessed? What can be done not only to secure someone’s assets and information, but to manage their legacy?
Generally email and social media accounts are managed under specific terms of service agreements. Sometimes the agreements contain provisions regarding a user’s death and sometimes they do not. Social media platforms that address the issue of a user’s death range from electing to delete the account upon death to memorializing a page so that friends can continue to post. A fiduciary can request that a deceased user’s account be deleted, if she can demonstrate that she has the authority to make such a decision and can prove the death occurred. Most states now have laws that pertain to social media accounts, emails, and other electronic accounts wherein certain individuals are able to gain access to a decedent’s electronic accounts if certain criteria are met.
As is the case with any assets and possessions, care should be given to the protection and accessibility to these items upon their owner’s death. It is best practice to make a list of all usernames and passwords and to keep them in a secure place, perhaps with a last will and testament. Alternatively estate planning can also make certain to provide specific authority under a testamentary vehicle so that electronic assets may be easily marshaled, preserved, and deleted, if necessary. After all, your estate also includes your Fortnite coins.
Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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