In this newsletter, we will discuss the current policies of some of the common online account providers, and our approach to planning for digital assets.

Current Policies

While many online account providers have no policy relating to deaths of their users, some of them do. Here are some examples of the policies.

Facebook: A family member, upon providing a death certificate, may have the deceased user's account closed or they can have it "memorialized." This means that no one may log into the account and make any changes, contact information is deleted, and only confirmed friends may view the memorialized profile.

Gmail/Google: A family member may have the account deleted, but may receive a copy of contents of the account prior to deletion if certain requirements are met.

Yahoo! Mail: No access is granted to family members without court approval, but the account may be closed by providing a death certificate.

As you can see, sometimes there is a method by which your family can access information. But if your named successor is not a family member, or if the website has no policy in place, your successor will be unable to gain control of your account.

Two-Step Approach to Planning for Digital Assets

The first step in estate planning for digital assets is keeping an accurate list of online accounts you own, including usernames and passwords. We do not recommend that you keep this list saved as a file on your computer, since a virus or other malicious software on your computer could give a third party access to all of your online accounts. This list could be kept in the cloud using online file storage systems, but your successor would need to know how and where to find the information.

Instead, we recommend you create a paper list showing all of your online accounts and all login information, including usernames, passwords and answers to security questions. This list would be kept with your original estate planning documents in a safe, and updated as necessary. Your successor must be able to access this list if you are deceased or incapacitated.

The second step is naming someone in your estate planning documents who will handle your digital assets (sometimes called a "digital trustee" or "digital agent"). This person can be the same as your regular trustee and agent, or he or she can be a family member or friend who is tech savvy and someone you trust to access and distribute digital assets.

Providing for the Digital Trustee’s Authority

In order to name a digital agent and a digital trustee, and to give that person the authority discussed above, you would need to execute a power of attorney which specifically grants your agent authority over your digital assets while you are living, as well as a trust instrument which gives your trustee the necessary powers while you are living and after your death.

Digital asset information should not be put into your Will, since it becomes a public document upon your death. While there is no guarantee that your digital trustee's authority will be honored, we hope that as digital trustees become more common, more websites will begin recognizing them and new laws will be established acknowledging your successor's authority over your digital assets.