A digital estate might best be described as any file on your computer, storage drive or website, and any online account or membership that you have. It would include things like music, videos, photos, financial records, etc., stored on a computer or smartphone, or stored on a website like Shutterfly or Dropbox. It would also include your accounts on social media sites like Facebook, Twitter, LinkedIn, and Pinterest.
The two big questions are:
1) Who owns/can access the digital assets? Whenever you create any kind of online account, at some point you click a box or take some other action that binds you to the service provider's Terms of Service ("TOS"). And most service providers have policies in their TOS that govern what happens upon the death of the account holder. These TOS, for now, trump the rights and powers that a personal representative (i.e., an executor) is given by a court, and also trumps (as of this writing) all of the handful of state laws that have been created to address digital estates. The reason that TOS usually trump state statutes is because the few laws that have been enacted so far merely give an executor the power to handle/access digital assets "where otherwise authorized"--meaning, if a given service provider does not authorize an executor to control the account after the account holder's death, the statute doesn't override the service provider's restriction. Some proposed statutes would allow a personal representative to access a deceased person's accounts regardless of the TOS, but so far none have been passed. Until a time that such laws exist, the TOS will rule the day, and most TOS state that no third party can access a user's account, even after death. Thus, an executor or other personal representative, even though authorized by a court to settle the deceased person's estate--and essentially "standing" in the deceased person's shoes--cannot get access to the account. Some service providers will simply shut down the account and delete everything that was posted there by the deceased person. In a world where most photos are never printed and most correspondence is never put to paper, you can see why the ability to access a deceased person's cloud data storage account or email account or social media account is more important than ever. A Gmail account or text messages saved on a smartphone are the modern day equivalents of a trunk full of letters discovered in an attic in days of old. A Shutterfly or YouTube account is the closet full of dusty photo albums, videotapes, and reels of super 8 film.
2) Who should be named to handle/administer the digital estate? The reality is that much of a person's digital estate may not be controlled by TOS, and even when digital assets are controlled by TOS, an executor armed with user names and passwords will likely ignore the TOS and simply access the online accounts to either shut them down or keep them active even after a person's death. Of course, I'm not suggesting that a personal representative bypass a service provider's TOS, but in actuality most will if they have the necessary information to do so.
Back to the main question: Who to choose to handle the digital estate? In many cases, it will be the same person chosen as executor. But there is nothing to prevent a different person being named in a will to handle the digital estate. One can easily picture a scenario where a person might want, for example, a parent or adult child to settle their "regular" estate, but because of the highly personal, often intimate nature of email, text messages, and many social media sites, that same person might want a friend or someone else to shut down or otherwise administer those accounts. Perhaps a 29-year old who is creating a will wants his parents to settle his "regular" estate, but doesn't want his parents to be rooting around in his social media world or email folders, even after his death. However, he wouldn't mind a trusted friend doing so. Believe it or not, there are also third party service providers through which a person can either authorize the service to "kill" online accounts upon that person's death, or to grant access to such accounts to a personal representative. Deathswitch and Legacy Locker are two such services (although my mentioning them does not constitute an endorsement--I have no direct experience with either service).
Finally, a person can also provide instructions in his or her will about what should be done with digital assets and existing social media accounts. Or, he or she can leave it to the discretion of the person named to handle the digital estate. The will's instructions can be as specific or as general as the person creating the will wants them to be.
I have been monitoring developments in this area of estate planning law for about a year now, and have struggled with the question of whether I should raise the issue in the estate planning questionnaire that all of my clients and prospective clients fill out as a first step in the estate planning process. Although I work hard to make the process as easy as possible, estate planning is often already daunting to people without adding another layer of things to consider. So I asked myself: Is the whole social media issue large and important enough to warrant burdening a client with yet another decision to make? Finally, this past week, I decided that it was. For now, I am just asking the question of whether the client would like to discuss the idea of naming someone other than their "regular" executor to handle social media accounts and other digital assets. If the answer is 'no', that will be the end of it. If the answer is 'yes', then I'll address it with the client. In the future, as the law develops, I might become more or less assertive about the issue, but for now the fact that I'm raising it at all is, I hope, an added value to my clients. I also provide my clients with a document where, if they wish, they can write down their various user names and passwords, to keep with their estate planning documents and other important papers. This way, an executor can easily access the person's various online accounts when the time comes.
I will continue to stay at the forefront of this issue, and to monitor the emerging legal landscape. I invite you to leave a comment expressing your opinion on this subject, and/or ask any questions that you have. I'll do my best to answer them. If you would like a private, no cost or obligation discussion about this or other estate planning topics, please feel free to contact me anytime.
More soon. In the meantime, be well.