When a person dies, it is natural that a grieving friend or relative may want to access your emails for sentimental reasons or, more practically, to settle financial and business issues.  Most companies have “terms of service” agreements which prohibit anyone from accessing accounts that aren’t theirs. Facebook will memorialize accounts by allowing friends to continue to view photos and posts after a person dies.  Yahoo users agree that their account expires upon death.   One father recently made national news when Yahoo refused him access to his deceased son’s email account.  His son was a marine in Iraq and his family wanted to use his emails to create a memorial.  Only after a probate judge issued an order requiring Yahoo to provide the information did the family receive a CD with the data. 

As part of your estate plan, you should decide if you want your spouse and children reading all of your emails.  If not, perhaps you should appoint an email executor to delete them all upon your death.  Lawyers, physicians, and other professionals must be particularly careful as posthumous disclosure of confidential client communications may constitute a breach of duty and result in liability even after death.

There is also the issue of what happens to acquired digital assets.  The average American owns more than $37,000 in digital assets—eBooks, ITunes, movie downloads, etc.  Can you bequeath these assets to beneficiaries?  Why not?  But you can’t do it without passing on the password to your intended recipient.

You might say, “there should be a law on this.”  It is likely there will be one soon.  The Uniform Law Commission recently put together a committee on this very issue. Their proposed laws are not to be released for at least one year. 

In the meantime, what can or should you do?

1.  Make an inventory of your social media passwords, emails, shopping sites and all other on-line accounts such as credit card or bank accounts.  You probably have more than you think and you should have this information all in one place anyway.

2.  Have your attorney draft a specific clause in your will/trust to allow a designated person the power to access, handle, distribute or dispose of your digital assets and control all passwords upon your death or incapacitation.  The more specific the better.

3.  Consider using an on-line service such as “Legacy Locker,” which is a website that allows you to deposit your digital property and passwords and will let you grant access to friends and family when you die or become incapacitated. 

4.  Make your wishes and plans known to your loved ones to ensure that what you plan is actually executed as you wish.

I saw a t-shirt the other day that read, “What happens in Vegas stays on Facebook.”  It is a bit disturbing to me that, when I finally meet my maker, my friends will continue to “like” my photos and posts into the future.  I also find it concerning that someone could read all of my emails–some of which were probably carelessly worded and flippantly sent.  That’s why I am coming up with a plan to keep these matters private when I am no longer able to log on!  

This post was written by Karen Conti: Partner