You Can't Take Them With You: One More Reason To Worry About Your Online Accounts
By now we all know about how important it is to keep your passwords to your online accounts safe and secure. You also know, and many websites require, that your passwords have to be complex and often times have a combination of letters, characters, and numbers. You also know that you should never write your passwords down on paper and that you should never have the same password across different websites. But there will come a time when you actually want a third party to access your accounts and you won't be there to provide those passwords. It's a bit off-putting to think about, but you should consider what happens to your online life after you die.
The State of Delaware recently became the first state to enact its version of the Uniform Fiduciary Access to Digital Assets Act. Essentially, Delaware now allows the fiduciaries of an estate, among others, to access and control the online digital assets of a decedent. This includes email accounts, social media accounts, health insurance accounts, financial accounts, online store accounts, and accounts related to web domain registration and web hosting. It remains to be seen when, or even if, other states will adopt similar measures.
Given that websites are hosted all over the country and many are hosted overseas, the jurisdictional question remains. These laws will no doubt run up against federal privacy laws and even the end user license agreements of the websites and companies in question. In fact the Delaware law explicitly limits the power of the fiduciary to the extent that it might contradict federal law or the end user agreements of the websites.
It is also unclear if most websites have taken into consideration what they would do if one of their account holders is deceased. Most websites should comply with a request from the estate accompanied by a death certificate. If push comes to shove, most websites should comply with a court order.
Of course, this all assumes that the estate can identify your account names in the first place. You should consider raising the question with your estate planning attorney to make sure that a list of the websites that you use, and at least the account names for those sites, are recorded somewhere. A list of passwords will not be of any use because, of course, you will be following good password safety procedures and changing your passwords from time to time (or you may be forced to by the website anyway). Discuss with your attorney how you can establish a procedure for your personal representative to contact those websites to deal with them as necessary.
If you have any questions about estate planning, please contact John Lauer of our Wills, Trusts, and Estates Department at 814-870-7712 or jlauer@mijb.com. If you have any questions about passwords, online accounts, or other technology related questions, please contact Jonathan D'Silva of our Emerging Technologies Department at 814-870-7715 or jdsilva@mijb.com.
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