Digital Assets: Post-Mortem Privacy v. Practicality

What happens to someone’s social media accounts, email addresses, frequent flier miles and credit card points after they pass away? Right now the answer to that question is: it depends on what state you live in. What about access to personal electronic devices? Apple has made it clear it will not break into the phone of a deceased person regardless of the circumstances.

As the financial landscape and economy in general continue to move in the direction of digital content, estate planners need to be advising their clients about how to handle digital assets. If a client wants his or her family to be able to access online accounts after death, the estate plan must reflect that intent.

Our legislators in D.C. can’t keep up with the user agreements consumers nationwide sign when licensing and/or purchasing digital content. Here in California, we are largely subject to each and every user agreement we sign because there is no state legislation overriding them.

The companies drafting these user agreements (think Apple’s iTunes, Facebook and Google’s Gmail, among others) are concerned with their customer’s privacy. They argue that without the authorization of the original user, allowing a family member to access the emails, photographs and social media accounts of a deceased person is a violation of the decedent’s right to privacy. 

This is of course a valid concern, but as an estate planner I can’t help but be concerned about lost assets. Without access to someone’s email account, would you be able to track digital assets like airline miles, credit card points, hotel rewards and others? Maybe not.

More than ever, organization, password keeping and clear communication of intent is an absolute must in planning your estate. The most iron-clad living trust, no matter how well planned, will not help your family navigate your digital landscape. Be proactive today.

Happy planning!

B.B.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Brittany Britton is licensed to practice law in the state of California only.

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