In the past, estate executors and family members would sort through the property and belongings of the deceased and keep an eye on the mail for important financial and other documents. These days however, a lot of “property” and many documents might be contained on a hard drive, in an e-mail account, or in cloud storage.
Craig Dickson, Senior Lecturer in Law at AUT University talks us through the ins and outs of what happens to your online life after you pass away.
Who legally owns your digital assets after you die?
This question raises two issues:
- Are digital assets transferable? Some of these assets are actually non-transferable licenses that cease to exist when you die. So you can’t take them with you, or leave them to someone.
- Can you lawfully give other people access to your digital assets? Many user agreements prohibit this, to avoid violation of privacy laws.
There is no industry-wide approach to ownership of, and access to, the digital footprint that you may leave behind – and an executor (assuming they have been authorised to do so) will need to follow the different process set by each organisation to access your data and assets.
Google, for example, allows users to designate someone who can access their account and data after they become disabled or die, or specify that their account and content should all be deleted.
Compare that to Facebook where a deceased person’s Facebook page can be converted into a “memorial page” upon request from a family member, but Facebook will not provide login information to the family.
Who gets control of your digital assets?
Ideally, you should give executors and fiduciaries access to digital assets in estate planning documents. This wording should go into your will, living trust if you have one, and in enduring powers of attorney.
What if there’s no one nominated?
If you have not nominated someone for the role of ‘digital executor’ in a legally binding way, it’s not clear when a court might order disclosure of contained data to your family.
The various tech companies’ guidelines can be a confusing maze because they all tend to approach these questions differently. Google for example won’t shut a Gmail account without a court order, while Facebook actively seeks to either shut down accounts belonging to the deceased, or “memorialise” them – which leaves the account online for his or her existing friends to see and interact with, but prevents anyone from logging in to it.
What happens to your social media identity?
If you are active online you should also consider creating a ‘social media will’ which sets out how you would like your online identity to be handled after death.
A social media will can appoint someone as an online executor who will be responsible for closing email accounts, social media profiles and blogs. To do this, the online executor will need a list of all the sites to which you belonged, and will also need to observe the different privacy policies and terms and conditions imposed by each site.
A social media will should also specify what it is to be done with content. In the case of potentially embarrassing material, the person making the social will might wish to state that is should be deleted, not downloaded.
Regular backups to a local storage system can overcome problems of access after death. Facebook actually offers a one-click option from the general account settings page for downloading data to a local hard drive; on Google+ it’s called ‘google takeout’ which can be accessed from the ‘data liberation’ tab on the ‘account settings’ page.
How can you avoid taking passwords with you?
There are some companies (like Password Box) that provide ways for families to access accounts after death. These services function like an online safety deposit box: you create an account, list people who are authorised to access your information after death (‘verifiers’), identify online assets, and name beneficiaries.
But it’s important to note that some of these services may conflict with privacy law, for example where online sites prohibit post-death transfer of the digital asset.
What happens to the data on your devices?
Computers and smartphones are considered tangible personal property, so unless your will separately spells out what should happen to the data, ownership of it will pass to whoever inherits the device.
So it’s best to make your intentions clear in the estate planning documents. For example, do you want the person charged with administering your estate to make copies of any of the data and distribute it to specific people before turning over the machine to the next owner?
The information provided is not to be taken as an alternative to legal advice and anyone having a specific question about any legal matter should consult their lawyer or a professional legal services provider.
Craig’s first career was for almost 20 years, conducted in the international equity and finance markets, largely in Tokyo and London.
Having then embarked upon law as a second career, he completed post-graduate studies at the University of Toronto.
Nearly three years in private practice followed before Craig joined AUT as a senior lecturer in May 2010.