Wills and Estates – Taking Control of your Digital Afterlife
WILLS & ESTATES – TAKING CONTROL OF YOUR DIGITAL AFTERLIFE
More and more of our lives are lived online. Huge amounts of personal information will exist long after our deaths. This information will be stored in email and social media accounts.
Recent legal decisions stress that if you wish to take control of what will happen to this information, action is required now. Taking control of your digital afterlife will make life easier for your children, friends and relatives.
Access to email and social media accounts are governed by service agreements and privacy policies. Many of those agreements and policies expire when the user dies. This means that any person (such as an executor or legal personal representative) trying to access a deceased person’s online accounts has faced difficulties.
An example was an action in 2012 brought by Facebook to successfully fight a subpoena brought by the family of a deceased woman. The woman had died in Manchester. Facebook, however, was headquartered in California. When the dead woman’s family brought legal proceedings in the US Federal Court in California, they lost: The Federal Judge rejected their attempt to gain access to the dead woman’s Facebook account. However, later in 2012, Facebook relented and allowed a couple from Virginia in the United States to have limited access to information from the account of their 15 year old son who had tragically committed suicide.
These legal difficulties prompted a change in US law. Delaware has enacted the Uniform Fiduciary Access to Digital Assets Act (UFADAA). Other American States will follow suit. The UFADAA makes it easier for estate executors to access digital data of a deceased account holder. Executors can now access online accounts without a court order which was otherwise expensive, time-consuming and often unsuccessful.
How should our email and social media accounts be treated? Are they the same as our physical belongings which we leave behind in death? Over the average person’s lifetime, we will create our own vast archive of digital communications. Many such communications are shared with a private specific audience. Many reveal different aspects of our character. Many are stored in a password protected account. These archives including photos and videos, will leave behind a more detailed picture of the private individual than has ever been the case previously.
The reach of the UFADAA raises interesting questions. It is not only the deceased’s private life that may be prized open. The privacy of those communicated with will also be challenged by the new law. Many may still be alive even though the deceased is not.
There are practical steps which a person should consider taking:
First, inform your next-of-kin or your executors of your accounts. It is best not to include login details or passwords in a will. Passwords are likely to change. The communication of these passwords may also be a breach of the online accounts’ terms and conditions. Furthermore, the will may become a public document, thereby exposing confidential information to a broad audience.
Increasingly, online services are prepared to store all online account login details so that they can be disclosed to nominated individuals in the case of death. This should be an enquiry when setting up the online account. The terms and conditions of the account need to be read carefully. Obviously, the service should be provided only by a reputable organisation.
An example is Google’s Inactive Account Manager which allows the nomination of trusted contacts such as executors to receive data from a specified account such as Gmail or YouTube after a chosen period of time when the account has been inactive. You can also activate an option of having your data delivered entirely upon death.
Facebook’s Digital Legacy Contact also allows a person to nominate someone to look after the account in the event of death. Your account will be “memorialized” and your nominated person will not gain full access to the account. The person will not be able to read private messages.
All of these considerations should be addressed when making a will.
This article is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.
For any further information concerning this article or requiring to make a will, please contact Michael Pickering, Principal, Judicate Lawyers – Barristers and Solicitors of Unit 11 / 233 Cardigan Street, Carlton, Victoria, 3053. His contact details are as follows: