Fiduciary Access to Digital Assets

 

What happens to your Facebook Account, Gmail account, iTunes songs, Flickr pictures, or any other internet  accounts you have opened when you die? The answer is usually found in the terms of service or policy set by the  provider. Most accounts grant the user only a license to use the service and no ownership rights. Hence, once  you are deceased the license to use the account is terminated. The provider may release information on the  account to the executor of your estate, but companies are not required to disclose any of your account  information. Account providers can be liable for releasing unauthorized information so their actions tend to be  on the side of caution. As an example, Facebook has a death policy that allows an account to be memorialized or  removed after family members make a valid request for the deceased person. Facebook will not allow family  members access to the account.

As a practical matter, how do you ensure that valuable digital assets are preserved for the heirs of your estate. As a minimum, you should have a list of all bank accounts and bills that you have electronic access to review and pay bills. Your will or trust should give your executor or trustee permission to obtain your digital information and assets. Once you provide permission to access any websites, email accounts, and financial institutions, then your executor will be able to gather and preserve your digital assets. You may want to consider leaving access to passwords through a password account such as LastPass or OnePass. A password protected spreadsheet stored on a flash drive may work for you. Leaving a list of passwords with your important papers can be a security risk when you are alive. The other problem is keeping the passwords current when stored on piece of paper in your safe or safe deposit box. Alternatively, pictures and emails saved on your computer or flash drive are digital property and avoid many of the problems of needing on-line access.

To sum up, under Maryland Law and in most states your executor has no right to access your on-line accounts. In fact, your executor could be in violation of Federal Law when accessing your accounts without specific permission left by the deceased. Hence, there is a need to address the issue in estate planning documents. Digital Access is becoming increasingly important and new laws are likely to be passed to address the problems. My recommendation is to make an inventory of your Digital Accounts, review the Terms of Service on your accounts, and consult with an attorney versed with the law of “Fiduciary Access to Digital Assets”.