Protecting Digital Assets After Death
This article was previously published in the October 2016 edition of the Atlanta Bar Association’s Atlanta Lawyer Magazine.
***UPDATE: Facebook now provides its users the option to memorialize their accounts and appoint a legacy contact. Memorialized accounts are a platform for friends and family to share memories after the account holder has passed away. The word “Remembering” will appear next to the person’s name on their profile. Depending on the page’s settings, friends can continue to see the content shared (it will no longer be available publicly), and the designated legacy contact can begin to manage the account.
A legacy contact can update your profile and cover photo, write a pinned post for your profile, respond to new friend requests, download a copy of your Facebook content, and/or request that your Facebook account be removed. Legacies cannot remove or change past posts or photos, read your messages, or remove any of your friends. (Note: Facebook requires legacy contacts to be 18 years or older). To add, change, or remove a legacy contact, go to Facebook settings, and then “Manage Account.” ***
More and more frequently, things which used to exist in a physical sense are now becoming digital. E-mail is replacing paper mail. Instead of buying movies on disc, we can purchase films on Amazon and store them in the cloud. Even heirlooms are becoming digitized, with photo albums existing online only. As technology advances and new social media outlets pop up, our digital assets become increasingly important to our lives. While some may not be of much interest to us or our survivors, it is important to plan ahead and protect those digital assets that are of continuing value.
In a general sense, “digital assets” are items which are stored in a binary format that include either an ownership interest or a license to use. Currently, this term encompasses things such as: computer files, digital documents, movies, audio content stored online, social media profiles, files stored on tablets, telecommunication devices, storage devices, and anything else that connects to the internet. Taking all of these categories into account, you may have accumulated a significant amount of digital assets that you want to pass along to family members. Or, you may have accounts or files that you want maintained or deleted after you pass away. Proper planning will help put you in the best position to achieve your objectives.
There are a few states which have enacted or proposed laws related to executor or fiduciary rights to digital assets. The laws are not uniform, however, they all seem to be aimed at increasing estate representative’s rights to access digital accounts or assets. Georgia does not have “digital asset” legislation in place, which means that company’s individual user agreements – and not executors – control online information and accounts.
Not surprisingly, there are as many policies on accessing and controlling online information as there are different organizations. Facebook, for example, has a policy stating that a person can manage a decedent’s Facebook account, but only if they had prior consent or as mandated by law. [SEE UPDATE]. Twitter allows estate representatives or immediate family members to manage a person’s account after they have died. For LinkedIn, the company allows individuals to handle other people’s accounts “as permitted by law” or “as necessary to comply with the law.” Google only allows authorized representatives to access others’ accounts “in rare cases.” Amazon does not appear to have a comprehensive policy on account use, but the company’s licensing agreement for Amazon Kindle specifies that an individual cannot “sell, rent, lease, distribute, broadcast, sub-license, or otherwise assign any rights to the Digital Content or any portion of it to any third party.”
While Georgia does not currently have “digital asset” legislation, the issue is on lawmakers’ radar. In the 2015-2016 session, the General Assembly introduced HB 274, which would have provided for access to a decedent’s digital accounts. The bill would have authorized a personal representative to “take control of, handle, conduct, continue, distribute, or terminate any digital account of the decedent,” as well as requiring providers of digital account services to grant access to digital accounts within 30 days of receiving letters of testamentary or letters of administration. This kind of legislation could be helpful for Georgians, but it may be a while before the laws are enacted.
In the meantime, what can be done to protect your digital assets? Be proactive. Consider including language in your will which gives your executor “all of the rights, powers and privileges that I have with respect to my digital assets.” You should also include a short, comprehensive definition of “digital assets.” This type of language can also be used in your power of attorney document, if you wish for someone else to be able to manage your digital assets during your lifetime. However, when granting this authority, especially as it relates to power of attorney, it is important to keep in mind that entities are not required to comply with your request if it goes against their user agreements and there is no state legislation forcing the issue. For example, many banks do not allow anyone other than the individual account holder to use online banking; having power of attorney will not necessarily change the bank’s policy on this issue.
Having the digital asset language in your estate planning documents allows you to take advantage of service provider policies in which a person can manage a decedent’s account with prior consent. With Facebook, users might also be able to designate other approved users in the account settings, or through contacting the company [SEE UPDATE]. Including digital asset language in estate planning will also enable you to take advantage of emerging laws and changing company policies, allowing greater access for estate representatives and fiduciaries.
There are still significant gaps, however, when dealing with companies such as Google, which are only allowing account access in “rare cases.” To work around this roadblock, you may want to simply leave a list of account usernames and passwords for your executor, or some other trusted individual (other than power of attorney). But, do note that online platforms require frequent password updates – which may be difficult to keep up with. Also, there is always an increased security risk when you share IDs and passwords with other people.
Protecting your digital assets is a challenge in this rapidly changing technology landscape, but as more people recognize the need for such protection, we can expect improvements in policies and laws. Companies are becoming more open to recognizing the rights of estate representatives, and legislatures are considering laws designed to protect users. Hopefully, Georgia will soon have procedures in place for protecting digital assets after death.
© Sarah Siedentopf and Siedentopf Law, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and EstateLawAtlanta.com with appropriate and specific direction to the original content.
 Used here synonymously with estate representative or personal representative to designate the individual in charge of administering the decedent’s estate.
 Includes executors but also encompasses those individuals with a legal and ethical duty to a client or other person because of the trusted position they maintain.