When a loved one dies, who downloads their important files from their cloud storage account? Who monitors their email inbox? Who decides what happens to the photos and videos on their social media accounts? And what if those tasks fall to you?
Everyone will die, but not everyone has planned what they want to happen with their digital assets after they’re gone. Even when someone makes a plan, survivors might still be limited in what they can do.
Tying up loose ends can become a nightmare for the living, especially when the volume of digital assets is enormous. Still, the more you know, the better you can plan for your own digital estate, and the easier it will be to manage someone else’s.
Take Inventory
The biggest determining factor in how much work it’s going to be to manage the online accounts and digital assets of someone who is incapacitated or deceased is whether they did any estate planning. If a person doesn’t write down what digital assets they have and what they want done with them, it’s impossible for anyone to know.
It’s not always a simple matter of memorializing a Facebook account or downloading photos from iCloud either. Digital assets can have as much monetary value as sentimental value. Say a person’s social media accounts earn dividends. How will a beneficiary collect future proceeds? And should they keep the account alive?
What about cryptocurrency? If it’s stored in a private wallet and no one has the key, the money is lost forever. It’s a different story, however, if a third party, like Coinbase or PayPal, holds the crypto. At present, bitcoin and other cryptocurrencies are considered “digital assets” and thus need to be treated that way when doing any estate planning.
Navigating the Law
In the US, digital inheritance is overseen by state law, the same as traditional probate and estate matters, according to Benjamin Orzeske, chief counsel at the Uniform Law Commission. He and his organization developed a state law known as the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which has been enacted in 48 states, Washington, DC, and the US Virgin Islands. The missing two states are Massachusetts, where RUFADAA has been adopted but not yet enacted as of this writing, and Louisiana, which went its own way with a similar but different law.
“At the heart of RUFADAA is this recognition that digital property is in some ways different from traditional, tangible property,” Orzeske says. He gives the example of mail versus email. When a person dies, their mail gets forwarded to a dedicated person, the fiduciary, who then receives incoming communication, bills, and payments. If they get a bill in the mail for a magazine subscription, they know to cancel it. Receiving the mail effectively gives the person appropriate information and access to manage the deceased’s accounts and estate going forward. Email is different. The fiduciary doesn’t just get new incoming mail. They might also have access to a searchable history of communication, which the deceased person might have expected to be kept private.
The real point of conflict, according to Orzeske, lies in the Stored Communications Act, a federal law that says companies that handle our online assets can’t release them without our permission. So RUFADAA gives survivors some rights while retaining the original asset holder’s privacy.
Under RUFADAA, a named trusted person can close accounts, but they can only get the contents—meaning the bodies of emails, private messages, videos, photos, attachments, and so forth—if the decedent specifically “grants the authority to the personal representative fiduciary,” according to Catherine Hodder, a senior attorney editor at FindLaw. FindLaw is an informational website that breaks down legal issues for a general audience.
