March 4, 2013

Fiduciaries Face Facebook Fights

by Morgan Wiener

Gone are the days when the personal representative of an estate could simply monitor the decedent’s mail for a few months and expect to obtain a fairly complete picture of the decedent’s accounts and bills.  Today, many of us choose to forego receiving paper account statements and bills and, instead, receive them either by email or by otherwise accessing the account online.  This seemingly simple change, along with the myriad other ways in which we increasingly live our lives and transact our business online, can lead to many questions after death about how to deal with a decedent’s “digital assets”.

To name just a few, a person’s digital assets may include computer hard drives, Facebook and other social networking accounts, email accounts, and passwords to access everything from online bank accounts to Amazon.com to the electric and cable bills.  After death, many questions may arise about these digital assets, including:

  1. How do you access these accounts?  What are the usernames and passwords?  Are any privacy laws or company privacy policies violated if the account is accessed by someone other than the account holder?
  2. Who should have access to the digital assets?  While it may make sense for the personal representative to have online access to the decedent’s bank account, should the personal representative also have access to the decedent’s Facebook account?  If the decedent left his tangible personal property to his children, does that include his computer hard drive and all of the files stored on it?
  3. What digital assets should even be accessed after death?  Did the decedent want anyone to have access to his personal email account?  What if he wanted the personal representative to have access to the bills sent to this account, but not to the emails between family members?
  4. And, in the first instance, what digital assets even exist?  While it may be safe to assume that the decedent had online access to his bank account, how do you know whether he also had a monthly order with Amazon.com for paper towels and laundry detergent?

While it may be impossible to fully answer, or even anticipate, all of the questions that may come up, it is important to think about them and how to address them before death or incapacity.  Some specific questions to think about for yourself and with your client are:

  1. Who do you want to have access to your online accounts?  Do you want the same person to have access to all of your accounts or do you want different people to have access to different accounts (bank account vs. personal email, for example)?
  2. How will the people you want to have access to your digital assets know what accounts you have and what the usernames and passwords are?
  3. Do you want a list of account usernames and passwords to be available to anyone prior to your death or do you not want anyone to see it until after your death?
  4. Do you want your agent under a general power of attorney or a healthcare power of attorney to be able to access any of your digital assets in the event of your incapacity?

One possible way to address these questions and organize the information is with a Digital Assets Inventory (click here to view sample inventory). The Digital Assets Inventory is akin to a personal property memorandum in that it is completed by the client, kept by the client, and is updated by the client as digital asset information changes.  Once completed, the client may then decide when and with whom to share the inventory.

Although there are no easy answers to these questions, digital assets are here to stay and the issues raised by them must be addressed.  Families have already ended up in litigation over these types of questions, and, unless steps are taken to proactively address these issues prior to death or incapacity, disputes over digital assets are only likely to increase over time.