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The Digital Consequences of Death (Or Disability)

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No one lives in cyberspace, they say. A lot of people spend a lot of time visiting, though. They leave a lot of traces there, and they interact with the non-cyberspace (some prefer the term ‘real’) world from there. The border is more porous than most national borders, these days.

What happens when people with a presence in cyberspace (really) die? Does the presence continue indefinitely, but unrefreshed? What do their survivors do about their activities in cyberspace? How do they deal with online assets, or even discover real-world assets that may be locatable only online? How do estate trustees and executors carry out their legal duties with respect to these assets, and the liabilities as well? Many people get most of their bills in electronic form. How can an executor see to paying the debts of the deceased?

Similar questions arise under powers of attorney for property in the case of people who become incapable of managing their own affairs. Some of the same questions face trustees in bankruptcy or others who need to identify and realize the value of assets that are located or traceable only online. For the sake of simplicity this note focuses on the impact of death.

For that matter, getting access to offline electronic information can be a challenge too. If the deceased has financial information on his or her computer (or smart phone) protected by one or more passwords, the trustee will have related problems. The computer-based data may link to online accounts, to make things more complicated.

Slaw has dealt with these matters before, in November 2009 and in February 2010. The questions are worth another review.

Let us first take a look at the types of presence one might have in cyberspace, and the challenges they may present to one’s personal representatives.

Email: Information about someone’s contacts and one’s interaction with the world often shows up in email. One may have notices of pending bills. Yet many webmail services close the account on the death of the user, or after a period (counted in months not years) of inactivity. They may delete the content too.

Here’s Yahoo:

No Right of Survivorship and Non-Transferability. You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! I.D. or Content within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all Content permanently deleted.

Websites: One may have one’s own site containing documents and pictures in varying volume and of varying value. While the sites are still online, their content can be saved – if the personal representatives know about them, and can access them despite password protection. One can also transact with others’ websites, such as through online banking or investing, where large sums of money can change hands or stay ‘in cyberspace’ pending further direction. If one can get access to email, one may be able to use the ‘lost password’ feature of many sites to request a new password to access those sites.

Social media: Users of the very diverse social media may have a great deal of personal information online, directly or in archives. A history of one’s conversations could have sentimental value, but other texts and pictures including videos might have monetary value too. Most social media sites do not allow the transfer of a site. Twitter insists that its members be individuals, not companies. So if the individual who tweets for a company dies, can that account be taken over by another employee? (The legal consequences when a well-regarded tweeter leaves his employment, taking his followers with him, are a different issue.)

Here’s Google’s Gmail::

Google may terminate your account in accordance with the terms of service if you fail to login to your account for a period of nine months.

Assets in the cloud: There are practically no limits to the amount or type of information that can be transferred to virtual service providers for storage, processing and distributing. This could include intellectual property with serious value. It also includes money in online accounts, such as PayPal. If the deceased ran an online business, say by buying and selling on eBay, preserving reputation and assets may be important.

Virtual property: Participants in role-playing and other online games may be able to convert virtual assets to real money, either officially or by informal transactions.

These activities and assets pose a number of challenges for estate trustees.

  • Identification: how can one find out what the deceased person owned, or owed? This can be made more difficult if the person’s accounts need to be accessed with a password: who knows what it is? One can look through real world bills or credit card statements to see if the person was paying for online assets or their storage.
  • Access: Some Internet services do not allow use of those services by anyone but the subscriber. The opportunities for abuse by someone who can step entirely into the online persona of the deceased are clear.

Here’s Facebook (registration and account security):

You will not share your password …, let anyone else access your account, or do anything else that might jeopardize the security of your account.

You will not transfer your account (including any page or application you administer) to anyone without first getting our written permission.

It may be satisfactory for the trustee to be able to get access to the information online, to trace the financial and other history relevant to the trustee’s task. (Facebook will probably be willing to turn the deceased’s page into a memorial site.) In any event trustees should keep paying the fees for online sites, to be sure that the sites are not closed and their contents deleted before protective steps can be taken.

  • Timing: If there is any delay in having a trustee or executor appointed or confirmed in his or her powers, the digital assets may have been deleted by the service provider before anyone has the power to ask about them. Some service providers want to see a court order before giving access to information; others may be more flexible.
  • Confidentiality: The deceased might not have wanted his next-of-kin to know what he was up to online. A digital executor might need to be discreet in cleaning out some information to protect the reputation of the deceased.
  • Valuation: What are digital assets worth? The question arises in dealing with them but also in reporting them to the tax authorities. There may be precedents in dealing with the value of goodwill of a sole proprietorship. A web page might be pulling in revenue from advertising. Domain names can be valuable aside from any content in the domain.
  • Criminal liability: The Criminal Code (s. 342.1) bars unauthorized access to computers or information stored in them, ‘without colour of right’. It is important that the proper authority be obtained before breaking into the deceased’s system.

In all these circumstances it must be helpful to advise clients to think about what they might be leaving behind and how they would like it dealt with. An inventory of online assets and the means to access them is highly advisable. Whether people need a separate ‘digital executor’ or merely a computer-literate general executor may be up to them. Banks and the holders of traditional assets are used to dealing with matters of succession; the providers of new media services may still have things to learn, and so do the lawyers and personal representatives of the deceased.

These people are not entirely on their own any more in this area. At least in the United States, specialist legal advice is available. (The author of that site, Jim Lamm, was a helpful source of materials for this note.) General reflections are online, even including a video. A Canadian source was mentioned in the earlier Slaw posts. Private services offer systems to help ensure appropriate advice and access to one’s survivors, though whether they fulfill all the legal requirements may be a matter of debate.

To reduce uncertainty further, it may be time for law reform. To date, five states in the U.S. have enacted legislation to protect the ability of executors to get access to email accounts. Here is Connecticut’s provision. Newer statutes refer to websites and microblogging accounts too. Idaho, for example, says this:

A personal representative, acting reasonably for the benefit of the interested persons, may properly: … (28) [t]ake control of, conduct, continue or terminate any accounts of the decedent on any social networking website, any microblogging or short message service website or any e-mail service website.

Five more states have legislation on the way. Differing legislation may be confusing and raises questions of applicable law. Last month the Uniform Law Commission decided to form a Study Committee , the first step in moving towards uniform state legislation on this topic. So far as I know, the issue has not yet been considered by the Uniform Law Conference of Canada.

Readers may wish to comment whether they have run into any problems in any of these areas, or what their strategies are for avoiding or resolving them. Should the legislatures step in, or is public and legal education enough?

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Comments

  1. Fellow Slaw.ca columnist and general all-round expert in IT matters Sharon Nelson has published a note on her blog that includes some sample language for a will to authorize trustees to deal with digital assets, or real-world assets that are accessed digitally.

  2. The Uniform Law Commission in the US last week set up a Drafting Committee on Fiduciary Access to Digital Assets that will probably meet twice before the ULC’s 2013 meeting next July.

  3. The January 2013 issue of the Estates, Trusts and Pensions Journal has several articles on this topic.

    The Society of Estate Trustees and Practitioners (STEP) of Canada had a seminar in Toronto in September 2012 exploring these issues:

    The speakers will discuss digital life after death and how digital assets need to be a part of your estate plan. Other commonly held myths on privacy rights being extinguished upon death of an individual and that an estate trustee may automatically assume the role of the deceased with respect to accessing digital estate assets. Cases will be referred to where relatives of the deceased had to apply to court to access the deceased’s digital estate assets because of the language of the site privacy policy.

    The work of the American Uniform Law Commission’s drafting committee on the topic, noted in the previous comment, will soon be updated with material for its next meeting in mid-February 2013. The Uniform Law Conference of Canada has named two observers to the ULC’s drafting committee.