Wednesday, February 19, 2014


What happens to my Facebook page after I die?

A few weeks ago, I received a request to send a birthday greeting to a deceased Facebook friend.  This friend has been dead for several years now, but her Facebook page remains active.  While I feel happy to be reminded of her every year, it feels a little creepy to be asked to wish her a happy birthday.

Have you ever thought about what happens to your "digital assets" after your death?   Who can read your e-mails after your death?  How will someone pay the online bills if you are incapacitated?  Who gets your iTunes or Kindle books?

What if you have an online store or an e-bay or PayPal account that is worth some money?  Will anyone even know what accounts you have?

There is no legal definition of "digital assets", so for the purposes of this article we will say that digital assets are files that are stored on a person's computer or on a server, and online accounts.

 We can divide digital assets into five categories:

  1. Devices and data, such as computers, iPhones and the documents stored on them
  2. Electronic mail, including message received and continued access
  3. Online accounts which require usernames and passwords
  4. Financial accounts which are usually linked directly to banking and other financial institutions
  5. Online business, such as online stores and blogs which may have the potential for streams of revenue

Traditional laws regarding ownership, and agency and probate laws generally dictate the rules about control of assets during life and the disposition of property at death.  There are hundreds of years of laws governing ownership, access to, and transfer of real property. There are laws and rules that govern ownership, access, and disposition of bank accounts and other intangible property, such as stocks and bonds and there are established laws covering personal property like jewelry and collectibles.  However, the law has not kept up with the ownership, control, or disposition of digital assets.  For the most part, that is because the ownership and rights of control and access to digital assets is not clear. 

 Why is this issue important?

Most people have at least one e-mail account, and many have several.  Each e-mail provider has its own rules governing access to e-mail accounts following the death of the account owner.  You know that agreement that you click on to accept before you can access a service or websites?  Yes, the one you never read.   That is where the terms of access, control and transfer are outlined.  To illustrate, the family of a young Marine, Justin Ellsworth, sought access to his Yahoo! e-mail account following Justin's death.  Before Justin was killed in Iraq, he told his family that the kind e-mails he received were a real comfort to him while he was so far away from home and that he intended to make a scrapbook of some of the e-mails.  Following his death, his father wanted to fulfill Justin's wish to make a scrapbook of the e-mails.   Citing its privacy policies, Yahoo! refused to allow the family access to Justin's e-mails until they got a court order.  Once the family secured the Probate court order, Yahoo! provided the family with a CD containing Justin's incoming e-mails.  However, Yahoo! denied the family access to the account because of their terms of service agreement with Justin.

At the time of the Ellsworth's court proceeding against Yahoo! people weighed on both sides of the issue of whether Justin's right to privacy families right was more important than his family's wish to read his private e-mails. Many sympathized with the family, but also thought that if Justin really wanted his parents to have access he should have given them his password or left written instructions about his wishes for access.  To this day, the issue has not been settled and each e-mail provider follows their own policies and procedures. 

Although Justin's e-mails likely had only sentimental value to his family, many digital assets have financial worth.  Take for instance the ownership of a domain name.  Do you know if your loved ones own domain names?  What if your deceased loved one owned the domain name which sold for $13 million in 2010?  GoDaddy communicates with clients only via e-mail, so unless you have access to the deceased person's e-mails, you may never know when a domain name comes up for renewal.  Think how you would feel if you did not renew ownership of!

Although we have said that laws governing digital assets are not clear, in our opinion the best way to handle management of these assets during the life of an incapacitated person or after the death may be to follow the current best practices regarding other assets.

First, appoint someone as an agent under power of attorney with specific powers to manage digital assets, or appoint a trustee to manage your online accounts during your incapacity.  Leave instructions to your agent, and include a way for the agent to get your usernames and passwords.

Giver your personal representative or trustee instructions on how to handle your online accounts after your death, including who you might want to be the beneficiary of such assets.

If you have accounts on websites which you might not want your family to access, you might leave instructions that your personal representative or another person is to clean up your computers, phones and other devices so as not to embarrass your family.

Finally, please let your family or personal representative know whether you want your Facebook page to go into memorial status - meaning it is preserved with pictures and posts, or whether you want them to close it down.

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