Have you ever thought about what might happen to your online accounts such as email, photo sharing, social media and iTunes after your death? Given recent developments in the law, the better question to ask yourself may be: “What do I to happen to my online accounts after my death?”
The fate of one’s online afterlife is a topic that lawyers and technology companies have struggled to address for the past several years. While both groups recognized the importance of enacting new laws that would resolve whether and how various legal representatives (such as executors, personal representatives, powers of attorney, guardians and trustees) can access the online accounts of a deceased or disabled person, until recently, the two could not agree on what exactly those laws should say. Most existing laws addressing a legal representative’s access to the property of a deceased or disabled person were written long before the age of the internet and are insufficient to cover online account access. After all, online accounts aren’t like cash, jewelry and art; a legal representative can’t simply take physical custody of online accounts from the deceased or disabled person’s home. Moreover, online accounts are often protected by username and password information that the legal representative may not know. In some cases, even with the password and username, a provider’s terms of service may restrict or prohibit any access following death or disability. Having the means to access the online account (i.e., username and password) is not the same as having the legal right to do so. Federal data privacy laws prohibit many online account providers from disclosing account contents without a government subpoena, and none of the laws expressly authorize providers to give the password or account contents to a deceased or disabled person’s legal representative. Understandably, some online account providers choose to simply prohibit any access following death or disability rather than risk violation of a federal data privacy law.
As understandable as a “no access following death or disability” policy might be from a legal perspective though, grieving families have struggled to accept it. Over the past 10 years, many families have taken account providers to court to obtain the email and social media accounts of deceased loved ones. Certainly, no technology company enjoys being painted in the press as unsympathetic to grieving families, but the companies remained firm that access by well-intentioned family members must yield to user privacy. These landmark legal battles underscored the need for a new set of laws that would definitively answer the question: do authorized legal representatives have access to the online accounts of a deceased or disabled person?
The Uniform Law Commission (ULC), a nonprofit organization comprising lawyers that drafts model state laws on areas of legal ambiguity, was one of the first to attempt a solution. In 2014, a group of ULC lawyers set forth a model law that would provide a legal representative with full access to the online accounts of a deceased or disabled person, and any terms of service that restricted or prohibited such access would be declared null and void. The lawyers argued that allowing a legal representative to have automatic and full access to the online life of the deceased or disabled person should not be controversial. After all, legal representatives will have access to and control of one’s bank and investment accounts, real estate, physical mail, tax records and all tangible assets. Why treat online assets differently? ULC’s lawyers also argued that it is not only consistent with longstanding trusts and estates laws for legal representatives to have full access to online accounts, but also crucially important to grant such access. Email is increasingly one’s primary means of communication; people are encouraged to “go green” and receive important statements and documents relating to various components of their financial and nonfinancial lives strictly via email. If a person is no longer around to access email, it is often difficult for those left behind to piece together his or her financial and nonfinancial lives. If no record of a financial asset such as a bank account or insurance policy exists outside of an email account, important and financially valuable assets could go undiscovered following the accountholder’s death or disability.
Although legislatures in 26 U.S. states considered the ULC’s model law, it has thus far not been successfully enacted anywhere. Large technology companies such as Yahoo!, Facebook, AOL, Google and their trade/lobbying associations were adamant that the ULC got it wrong and that the majority of people in the U.S. do not want their electronic communications such as email and social media messages disclosed following death. Electronic communications, they argued, were not like physical letters that a person could expect his or her family to read and access after he or she dies or becomes disabled. Further, they said, the nature of communications has dramatically changed, and the American public now expects email, text and social media messages to remain private in the afterlife. The tech companies rejected the ULC’s model law in favor of the Privacy Expectation Afterlife and Choices (PEAC) Act drafted by technology trade association NetChoice, which provides that no legal representative may access the electronic communications (i.e., email and social media messages) of a deceased person unless that representative obtains a court order and demonstrates that the deceased person consented to access by the representative.
As the 2015 legislative year passed, everyone involved in the attempt to develop a law to provide or prohibit access to online accounts following death or disability learned that it would be nearly impossible to enact the ULC’s model law or the PEAC Act in multiple states. Lawyers and technology companies fought to a draw.
In May 2015, representatives from several large technology companies contacted ULC representatives to negotiate a compromise. The negotiations resulted in the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which makes a distinction between online accounts that do not contain any protected electronic communications (such as domain names) and online accounts that hold certain types of electronic communications (such as email accounts) – for which experts believe there is a greater expectation of privacy. Thus, under RUFADAA, an authorized legal representative can only access protected electronic communications if the deceased or disabled person consented to such access. The deceased or disabled person can consent to access in estate planning documents such as a will or power of attorney or through a setting inside the online account itself that allows the user to designate his or her wishes in the event of death, incapacity or account inactivity. The expectation of privacy for online accounts that do not contain protected electronic communications is much less, and therefore, the rule for those types of accounts is reversed: unless the deceased or disabled person restricted access, an authorized legal representative may access such accounts.
RUFADAA is “hot off the press” – it was finalized on September 11, 2015, and it may be awhile before it is the law in most states. When it does become the prevalent law, the express consent of the accountholder is paramount to ensure an authorized legal representative has access to electronic communications such as email. Accordingly, proper estate planning to address online accounts is more important than ever.
If your estate plan does not address your online accounts, consider whether you would like your legal representatives to have access following your death or disability. Are there any particularly sensitive online accounts that you would like to remain private? If making any online account private will render it more difficult or impossible for your legal representatives to find and access your financial accounts, develop an alternative plan to preserve the important financial information in such accounts. After considering your wishes for online accounts, contact your BBH Wealth Planner and/or estate planning attorney to ensure your estate planning documents include the appropriate language that specifically authorizes or prohibits access to your online accounts. Depending on your wishes, appointing a special “online executor” to take responsibility to shut down your accounts or otherwise manage your online identity may be appropriate.
If you would like your legal representatives to have access to your online accounts following death or disability, updating your estate planning documents is just one step. Most online accounts do not require any paperwork, and therefore, it is often hard for legal representatives to know where to look to actually find such accounts; creating a list of online accounts, usernames and passwords can help with this issue. There are a number of ways to create this list. One option is to write out all online accounts, usernames and passwords on a physical piece of paper. Although simple and easy, there are obvious security concerns with this approach. What if the list is stolen or falls into the wrong hands? What if your legal representatives can’t find it when they need it? A better approach would be to keep an updated, encrypted electronic file with a list of all passwords and to store the password needed to unlock the encrypted file separately; make sure that your legal representatives know to look for this list if something happens to you. Online or software-based storage accounts may also help: a service provider will store digital data regarding online accounts, usernames and passwords and release it according to the owner’s instructions. In this case, the legal representative would merely need to know that the deceased or disabled person is a participant in the service (no password required). These sites usually offer state-of-the-art security, and participation fees are usually modest.
Whether or not you want your online accounts to outlive you, it makes sense to review the terms of service of your online account providers – or at least those you use most often – to understand what will happen to such accounts following death or disability. For example, Yahoo!’s terms of service completely restrict access in such cases. Google’s terms of service, as one alternative example, do allow legal representatives to gain access to a deceased user’s account under certain circumstances. An optional feature within all Google accounts, the Inactive Account Manager, also lets users plan in advance for what should be done with their accounts if they become inactive (as a result of death or otherwise). Whichever online service providers you use, it is a good idea to become familiar with what will happen to your account after death or disability and to terminate accounts with those that cannot fulfill your objectives.
The BBH Wealth Planning team has been carefully following the developments regarding estate planning for your online accounts and would be pleased to discuss this topic with you and your team of legal advisors in greater detail.
Neither Brown Brothers Harriman, its affiliates, nor its financial professionals render tax or legal advice. Please consult with an attorney, accountant and/or tax advisor for advice concerning your particular circumstances.
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