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When I was growing up as a kid, I loved going to my grandparents’ house. They lived in the country, had a simple life and enjoyed it. Nighttime was for playing games, telling stories and looking at old pictures. Their pictures were stored in boxes in the spare bedroom, games were in the foyer closet and old letters were in a file cabinet downstairs.
They had physical possession of most of their assets. The only truly elusive assets they had were their bank accounts – which was with a local bank only one town away.
Today, many possessions that were once so clearly yours are now stored away in the “cloud.” Yes, your username and password gives you access to those items, but that access is granted through the website’s terms and conditions – which you almost certainly did not read.
If you did read the fine print, you learned that you are not supposed to share your username and password with others.
Maybe you learned that you don’t actually own the music or movies that you purchased, but instead you own a license to use them.
Maybe you learned that after a period of inactivity your account CAN be closed.
Or potentially you saw that the agreement was just between you and the company and could not be transferred.
Regardless, reading the document gives the clear impression that your ownership is limited, at best.
Federal and state legislation
In essence, many possessions we “own” are not as easily passed to the next generation as they once were. Two pieces of federal legislation – the Stored Communications Act and the Computer Fraud and Abuse Act, both of which were passed in 1986 – dictate the restrictions that website providers can attach to online accounts.
Many times, out of privacy concerns, websites adhere to the strictest provisions. This means that at your death, they are unlikely to share your username and password with your executor or other fiduciaries. If your beneficiaries don’t know how to access the site with your credentials, it is very possible that the information will be lost unless a legal challenge is pursued.
Connecticut (2005), Indiana (2007), Rhode Island (2007), Oklahoma (2010), Idaho (2013), Nevada (2013) and Virginia (2013) are all states that have passed legislation providing executors and fiduciaries the legal authority to act as the decedent. However, Connecticut and Rhode Island only give access to a decedent’s email accounts, Virginia’s law only applies to minors, and the other states don’t have exactly the same wording either.
The Uniform Law Commission is working on model legislation that it should release to states this summer protecting your digital assets. However, all 50 states need to pass it – hopefully with little or minor changes.
This model legislation, the Fiduciary Access to Digital Assets Act, requires that website companies give a user’s fiduciary (meaning personal representative, power of attorney or trustee) access to a user’s online accounts. It further states that this right can’t be taken away from a website user in the terms and conditions. Under the current language in the bill, the website user would have to separately approve any provision that limited or eliminated his or her fiduciary’s access to online accounts. This is a big step in the right direction and provides rights and privileges that don’t currently exist to the fiduciaries.
Shut down all internet access?
That may seem like the best solution but in reality it isn’t possible anymore. However, much of our lives have moved online, and more is heading in that direction. What you can do is take steps to document what you have moved online. Why is this important?
There are four key steps you should take to help protect and preserve your digital assets:
- Document where you have accounts.
- List your username and password.
- List the reasons the website is important
- Provide the email address associated with the account.
These steps are important because they give an indication of all the digital accounts you have created, how to access them and whey they need to be accessed. In addition, you have provided the email address associated with the account in case the password needs to be reset. This will allow your executor to quickly and clearly determine what needs to be done and when.
Is this really important?
There are numerous examples where families have struggled to gain access to information stored online after the loss of a loved one. One of the more difficult ones to understand was Yahoo!’s decision to not release the emails of Lance Corporal Justin Ellsworth after he was killed by a roadside bomb soon after arriving in Iraq in 2004. After a long legal battle, his family finally won access to his accounts. Facebook has also been sued on numerous occasions as families seek access to a loved one’s photos or other intimate details.
For married couples who use online bill pay, you may notice that you can’t see what bills your spouse pays online. In the event your spouse passes away, it becomes the cumbersome task of waiting for bills to arrive and checking those against the last several months of bank statements.
Some married couples opt to share a username and password to simplify this process. This eliminates the questions immediately after the loss of a spouse. However, once the surviving spouse notifies the bank that the joint account holder has passed away, the information may be lost as the bank shuts down the online access for the decedent.
Wrapping it up
There are countless examples of websites that create value for their users while they are alive but generate frustrations for their family after they have died. As mentioned above, online bill pay is probably the most used time saver that can create additional pain for a family in the days after the loss of a loved one. However, we gain value from the relationships we build and rekindle on Facebook and Instagram, yet limited access to these accounts can be frustrating to heirs. We load pictures and documents to sites like Flickr and Dropbox, but access may be difficult or navigating our organization can be hard by our heirs seeking important memories or documents.
Many times the simple four steps outlined above can reduce the confusion and frustration after the loss of a loved one. They provide a means to access and outline the reasons why that access may be important. Otherwise, your family could spend unnecessary time trying to navigate our complex web of organization to find what they need.