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Few make plans for digital assets after death

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‘That’s part of your estate, your possessions...’

By Calen McKinney

 Most people plan what will happen to their children, property and other personal belongings after their death. But few might think to specify what is to happen to their email and other digital assets, from their Facebook and Twitter accounts to their online photo galleries.

“What do you do with that?” Tony Smith, who serves as the IT specialist for Taylor County government, said. The Uniform Law Commission might have an answer.

ULC is made up of attorneys, judges, legislators and law professors who have been appointed by state governments to research, draft and promote enactment of uniform state laws. Earlier this month, ULC members approved the Uniform Fiduciary Access to Digital Assets Act, which allows the fiduciary of an estate to have access to a person’s digital assets, but not ownership of them.

While the ULC has approved the digital assets act, it’s now up to lawmakers to draft similar legislation in hopes of it becoming law in their state.

While Kentucky has laws that address cyber security, a search reveals none that pertain to access to digital assets. Smith said a person’s digital assets have value, albeit not monetary, but a sentimental and personal significance to loved ones and friends.

“That’s part of your estate, your possessions,” he said. “It’s something I think people haven’t given any thought to.”

Without instructions as to what should happen to a person’s email and social media accounts after death, Smith said, it’s not always possible to know what they would have wanted done with them.

Some digital accounts contain sensitive and delicate information, Smith said, and access to them after a person’s death can become a legal issue.

Smith said there have been lawsuits filed asking for access to accounts after a person’s untimely death. Since the person who died didn’t specify that in a will, Smith said, it made the issue complicated.

“What’s to say they didn’t want anyone to read their email or Facebook?” he said. Smith said he believes the ULC plan to allow a representative of an estate access to the accounts is a good idea. Hermano Queiroz, director of Information Services at Campbellsville University, said he believes each case should be handled differently.

“Since we’re moving rapidly to a digital era, it’s important to share among family and loved ones data that are part of your daily basis, but still need to keep secret,” he said. “I will not imagine the pain of someone trying to remember an email account or even password after a death of a loved one to access important data such as contacts of friends, photos, albums and others things that are part of the digital file cabinet of these days.”

Smith said he believes people should specify what they want done with their digital assets after death in their will. “I think that’s an excellent option,” he said.

Queiroz agrees.

“There are some users that keep all their emails, pictures, etc. and some sentimental value or even historic value could be found in these,” he said. “Sometimes information that was shared only once. The shoebox, file cabinet, lock box from the past are now becoming the Facebook page, blogs, multiple email accounts.”

In a will, Smith said, it’s good to state that username and password information is accessible only through the person in charge of the estate. Otherwise, that information could become public once the will is probated. Without specifying what is to happen with someone’s digital information after death, Smith said, a person will likely have to hire an attorney and go through several legal channels to get proper access to an account. It’s possible for someone to have given their username and passwords to a friend or loved one, but Smith says that’s not exactly legal.

“Unless they’ve given you specific permission,” he said. Some service providers prohibit a person other than the owner of an account from even logging into it. Smith said he stresses that people keep their passwords private, and remember that the accounts they use at their workplace don’t belong to them.

Social media and email sites have policies in place for what happens to accounts when users die.

Facebook accounts can be “memorialized,” which allows “friends” of the deceased to have access to their posts and photos after death. Google accounts can be deleted if a person doesn’t access them within nine months.

Yahoo accounts end when a person dies. They are also deactivated when there is no activity on them for 12 months.

Twitter officials will work with the loved ones of deceased users to deactivate their accounts, but they won’t allow access to them. If a person isn’t active on their Twitter account for six months, the account could be closed.

And Instagram accounts can be removed after a person’s death, but access isn’t granted to loved ones. Accounts can also be removed because of inactivity. Queiroz said Apple includes a “no right of survivorship” clause in their iCloud terms of service.

“Since the agreement was formed between two parties and one is no more [a] part [of] the equation, the account should be terminated upon death, along with all content within their account,” he said.

Smith said policies like these can solve the dilemma of what happens to a person’s account after death, but the question still remains if loved ones allowed access to the information posted.

Queiroz said Supreme Court justices might be the ones who ultimately decide. Nevertheless, he said, he believes a person’s privacy should always be respected.

“If there is not [a] will allowing [someone] to have access on their accounts after they passing, the account should be eliminated,” he said.

Smith said a person’s online accounts can be left in cyber space forever. Even though it will take a long time, he said, the information will eventually go away.

In today’s society, Smith said, people tend to let their guard down when it comes to what they post online. “The problem is people post too much, not realizing it could be there forever.”

Smith said he encourages people to think about what they want to happen with their digital assets when they die, and then include that decision in their will.

“It’s definitely something to consider,” he said. “We add all our other assets, why not our digital assets?”