To celebrate its 10th anniversary, Facebook created a “Look Back” video for each of its users. A father mourning the loss of his recently-deceased son uploaded a video of himself to YouTube pleading with Mark Zukerberg and Facebook to see his son’s video. The father deemed his request a “shot in the dark,” but Facebook answered and informed the father it was creating a memorial video for his deceased son.
The same day I read about this, I had a reminder on my Facebook homepage reminding me to say “Happy Birthday” to one of my Facebook friends. Unfortunately, that friend passed away a few weeks ago, and the would-be-friendly Facebook reminder ended up being a painful one.
When a user obtains a Facebook, Yahoo, Google or other electronic account, they enter into a user agreement. Without legislative cohesion on this issue, what information is accessible — and by whom — tends to vary greatly by custodian. Here is a sampling of some of the larger custodians:
Facebook’s current policy allows users to deactivate, memorialize or delete an account. Facebook’s current policy on memorialization for deceased users is to turn the deceased user’s page into a memorial by submitting a Memorialization Request. Facebook indicates it tries to prevent references to memorialized accounts from appearing on Facebook in ways that may be upsetting to the person’s friends and family, and takes measures to protect the privacy of the deceased person by securing the account. A profile undergoes several changes when it goes from an active account to a memorial account. Facebook removes sensitive information from the profile like contact information and addresses, and it removes status updates to protect the privacy of the deceased user. Facebook also changes the profile settings so only the user’s friends can find the profile and post information to the user’s wall. This allows others to visit the profile and use it as a place for memorialization and prevents digital vandalism. Another protection Facebook takes, searches for the deceased user on Facebook’s search engine will not include the memorial page. Facebook also deactivates the user’s login information preventing anyone from guessing the user’s password and logging in and making any new posts.
If, however, family members of the deceased do not want a memorial page, they can ask to have the account deactivated by submitting a special request for a deceased person’s account.
If no one contacts Facebook to alert it of the user’s passing, the profile remains active indefinitely because Facebook does not delete inactive accounts without notification. In this case, depending upon the user’s privacy settings, users can still search and visit the deceased user’s profile and leave comments.
Another interesting note about Facebook, “If I Die” is a Facebook application that enables a user to create a video or text message that will only be made public if the user dies. Three pre-selected trustees must collectively confirm the death before the website releases the video online.
Google has Inactive Account Manager on its sites, including Gmail, Blogger, AdSense, Picasa and YouTube, which prompts users to decide what happens to their accounts should they die. Users can choose to share information on their accounts using Inactive Account Manager for trusted contacts. If a user does not make a selection, Google’s strict two-part policy on Accessing a deceased person’s account warns that obtaining access to a deceased person’s email account will be possible “in rare cases.” If there is a period of inactivity from three months up to a year and a half, Google will try to contact the account holders, then alert friends and family who have been granted access if they get no response to whatever personal data has been granted.
For Microsoft accounts, like Hotmail, Outlook, Windows live and MSN, Microsoft has a Next of Kin process that allows for the release of digital content, including all emails and their attachments, address book, and Messenger contact list, to the next of kin of a deceased or incapacitated account holder and/or closure of the Microsoft account, following a short authentication process. Following the authentication process, Microsoft provides a DVD with the account contents to the requester. However, if account contents are not obtained without a year of inactivity on the account, Microsoft deletes accounts, and it deletes the account itself after an additional 1 month; for a total of one year and 1 month. Once that happens, Microsoft claims it is unable recover any of the data from the account.
Twitter will deactivate an account upon the request of an estate executor or a verified immediate family member once a copy of a death certificate and a bunch of other information is provided. Currently, Twitter does not allow accounts to be memorialized.
Yahoo has the strictest policy — that no one can get access to a deceased user’s account. Yahoo will not grant permission to anyone to access a deceased user’s account. The only permission Yahoo grants is for the account to be deleted.
It is worth noting that transfer at death of certain digital information depends on the company’s terms of service, copyright law and whether the file is encrypted in ways that limit the ability to freely copy and transfer it. For example, rights to digital content bought on Google Play end upon the person’s death. There is currently no way of assigning them to others after the user’s death. Encryption is another common constraint, but it does have some exceptions. For example, Apple’s iTunes store has removed its anti-copying restrictions on the songs sold on the site, and people can take advantage of this in their digital planning by backing up music on their computer. Up to five computers can be authorized to play purchases made with one iTunes account. At Kindle, anyone with a user’s account information can access the digital content.
A handful of states have laws governing access to the digital assets of deceased individuals. These states include:
- Connecticut and Rhode Island, which have laws that only apply to email service providers
- Idaho and Oklahoma, which additionally address networking and microblogging accounts
- Indiana, which defines custodian broadly to include “anyone who stores documents or information electronically of another person”
- Nevada, which authorizes a personal representative to request termination of an account
- Virginia, which specifically addresses minors
This number is highly likely to increase as providing for digital assets will soon become a critical aspect of estate planning. Most of these states require “custodians” of information, i.e., the online service providers such as Facebook, Twitter and Google to provide access to the online accounts upon receipt of a written request by an appointed executor or personal representative of the deceased.
Currently, there are efforts by the Uniform Law Commission (ULC), which has drafted legislation that, if adopted, would grant an appointed designee broad access and control to a deceased person’s “digital property.” The two main stipulations, however, are:
- The designee must be explicitly authorized to access or control digital property
- The designee would be the only person allowed to access the digital accounts
Neither the current state laws nor the proposed uniform law addresses what happens if the deceased fails to formally appoint someone to manage digital assets. Until the laws come up to speed with the times, it is advisable that users take steps during their lives to handle their digital accounts after their deaths — a digital estate planning, if you will.
Legal digital estate planning
Many people do estate planning, but most times, this does not include any provisions directing what happens with digital account information. Here are some steps to help protect digital assets.
1. Do an inventory of digital assets
First things first: Digital assets are important, so itemize a list of all your digital assets and online accounts, e.g., bank accounts, store accounts, social media accounts, etc. Make sure to include your password, username and other relevant information used when opening the account like email address associated with the account. The easiest place to save this inventory is as an encrypted on your personal computer so that you can update it regularly as user names and passwords are added and changed. Strong passwords for your financial accounts are necessary.
2. Select a digital account fiduciary and arrange access
Remember to confide in your digital fiduciary about how to find your inventory and the circumstances under which you want the fiduciary to take control of it.
3. Protect your inventory
Once you have a fiduciary, you can choose to share your inventory with the fiduciary or you can keep your inventory in a safe place and arrange for the fiduciary to have access to it when needed. Many people choose to keep this information on their home computers because it makes it easier to update. If you decide to follow suit, make sure to encrypt the document. Microsoft Word makes it easy — just click “Prepare” tab in the Microsoft Word ribbon, then choose “Encrypt Document” from the drop-down menu. You must then assign a password to the document, which is the key to recovering the document.
Another option is to keep the inventory in an online storage account such as Dropbox or iCloud. There are also a few online password manager services that safeguard digital account information. They act like online safety deposit boxes that allow users to store passwords and other data. Here are a few that allows users various options, from storing passwords and other information, to sending messages out to loved ones after death.
- AssetLock: AssetLock allows users to upload files, passwords and instructions to be released to predetermined individuals at their death. The site focuses on storing large amounts of information that may be necessary for others to know after a death, including financials, estate planning, insurance policies account passwords, emails and final wishes and directives. The site also has the capacity to store letters to be sent after a death. The service also allows for the delivery of email messages and printed letters. AssetLock determines a user has passed by waiting for a certain number of your recipients to log in and certify the passing. Once a death is confirmed, the account is unlocked (after a time delay preset by the account holder). Pricing plans range from $9.95 per year to a one-time $239.95 fee for lifetime membership, depending on the amount of storage space and other customizable options selected.
- Deathswitch: Deathswitch periodically prompts the account holder to provide a pre-determined password to ensure the user is still alive. If that person does not enter a password on multiple occasions for a period of time, it concludes that the person is either dead or severely impaired and begins sending personalized pre-written messages to chosen contacts. The service can be used in many ways, but according to the site, some of the more common uses include sending passwords, financial information, final wishes, last words, love notes and funeral instructions. The free subscription option allows an account holder to create one message to be e-mailed to one recipient. For $19.95 a year, the user can prepare up to 30 messages with file attachments for up to 10 recipients per message.
- Legacy Locker: Legacy Locker offers three pricing plans. Users can create a free account and store up to three assets, designate one beneficiary to retrieve the assets and write a Legacy Letter, which is a message the company will deliver to designated recipients after verifying the death. If a user wants more, there is a $29.99 per year plan or the $299.99 one-time fee plan, both of which allow for unlimited assets, beneficiaries and legacy letters, as well as document backup and video upload.
- My Personal DataSafe: My Personal DataSafe is a personal information management (PIM) software. It allows users to enter and update their personal, medical, financial, legal and insurance information. The information can be retrieved from a number of report options
- PasswordBox: PasswordBox is a password management tool that saves a user’s password information and allows a user to share that info with trusted individuals who can close the accounts safely after the user is no longer able to.
- Secure Safe (formerly Entrustet): Entrustet is a free online service that allows users to securely list all of their digital assets (online accounts and computer file), and decide if you’d like them transferred to heirs or deleted when you pass away. Entrustet also offers standardized and custom solutions for websites to help them deal with a user’s death and last wishes.
Digital information is extremely valuable. This is the digital age, but we have just touched the tip of the iceberg in terms of what we will see in terms of digital asset storage, recovery, laws and estate planning options. Taking steps now to ensure the proper protection of your digital accounts is important and something anyone with a digital account should think about.