September 29, 2016

When you die, the executor of your estate begins the task of managing and distributing your assets. In the past, financial accounts, real estate and various chattels such as cars, furniture, personal property and other tangible items were affected. The advent of the information age, however, finds individuals storing heritable information online in the form of accounts and personal data.

Personal and sentimental items such as email accounts, photographs, videos and messages comprise much of this online data. However, some online records, including online banking and bill paying accounts, music and video subscription services and online trading or stock accounts with companies such as Optionshouse, may have financial value. To complicate matters, each category of online items has a set of rules and regulations governing inheritance, privacy and distribution issues. The lack of consistency across platforms’ policies has made life increasingly difficult for grieving family members attempting to delete, retrieve or redistribute online property.

Online items of a sentimental nature have gotten the lion’s share of press attention. In January 2016, for example, Technobuffalo reported that Apple refused to give a widow her dead husband’s passwords, even after she provided the serial numbers for the iPad in question. Apple maintained that she needed a court order for them to release the password, and the company stuck to its guns until the widow reached out to CBC’s “Go Public.” At that point, she got the passwords and an apology from Apple.

In some cases, access to accounts of deceased family members could prove essential to healing or understanding a decedent’s actions. In 2011, Ricky and Diane Rash, the parents of a boy who committed suicide, tried to access their son’s Facebook account to more clearly understand why he’d taken his life. Even after they obtained a court order, Facebook fought their attempts to recover materials from his account. Ultimately, it took the parents one year of legal conflict to win only limited access. This experience prompted them to push for legislation that would allow parents and legal guardians to access their children’s online accounts, a project which culminated in the Virginia General Assembly's unanimous adoption of House Bill 1477, the Uniform Fiduciary Access to Digital Assets Act.

It could be partially due to situations such as the Rash family’s that in February 2015, Facebook announced that users could designate legacy contacts. A legacy contact is an individual who would have access to your account after your death to pin a post, accept friend requests and update your profile. This person wouldn’t have access to your private posts, but he or she would be able to manage your profile after your death. It’s a step forward, but family members and heirs still can't retrieve photos or videos stored in your account if they aren’t public content.

Twitter has a more lenient policy. Its support center clarifies that you may have a deceased user’s account removed by providing some basic information about the decedent, a copy of your identification and a copy of a death certificate. It will also consider removing images of deceased loved ones across the platform at the request of the immediate family. However, Twitter restricts access to the deceased’s account, and it may deny any application for media removal, although it claims to consider these requests.

Be warned if you store data in the cloud. iCloud’s Terms and Conditions state that you agree your account is “non-transferable.” Non-transferable, in this case, means that Apple terminates rights to your Apple ID and content in your account after your death. While heirs may not retrieve content, they can terminate the account and have the content deleted if they have a copy of the death certificate. However, personal photos or videos may be lost forever if they are stored in the cloud rather than on a computer or accessory drive.

So, Facebook, Twitter and iCloud may keep your sentimental items, but what about your music and movies? Apple says heirs have no right to your music or video collections after you die. According to the company, you haven't bought a license to the tangible music or film; you've only bought a license to listen or watch, and that license dissolves upon your death. Apple states this philosophy in Section B of its service agreement: “iTunes is the provider of the Service, which permits you to purchase or rent a license for digital content ("iTunes Products") for end user use only under the terms and conditions set forth in this Agreement.”

ZDNet’s Ed Bott highlights the difference between your rights for tangible items (including CDs and record albums) and intangible ones (such as iTunes). The differences are startling, and they’re overlooked by consumers who click the “I agree” button when accepting various terms and conditions in advance of a sale. The "first sale" doctrine in Section 109 of the Copyright Act is simple: Once you've acquired a lawfully-made CD, book or DVD, you can lend, sell or give it away without having to get permission from the copyright owner. However, this doctrine is overwritten in iTunes’ terms of use agreement. Apple is in good company, too — Amazon’s Music agreement and emusic’s terms of use have similar statements solidifying their stances on the distribution of their products, before and after death. So, while you might inherit your father’s iPad, you can’t inherit the music or videos residing on it.

Besides terms of use, user agreements, and other legally binding contracts that a decedent agreed to before death, there are much larger factors at play in whether or not you get access to a deceased loved one’s accounts. Online data storage is not a local issue; it’s a complex, global one. A decedent living in the United States may have far-flung accounts housed in England, India or other places in the world. Because each nation has rules governing the distribution of online assets, retrieving these accounts may be more troublesome than you might expect. Solicitor Ian Bond explains, “In the absence of clarity on which countries’ laws apply, how a digital service provider deals with an asset following the death of the user becomes a matter for the provider’s terms of use. No uniformity exists so, in reality, each separate digital service provider sits in final judgment when it comes to deciding the fate of the digital assets.”

More easily navigated for heirs are online brokerage and securities accounts. The Financial Industry Regulatory Authority, or FINRA, does not specify its rules for online accounts because many banking and investment accounts have an online component in conjunction with traditional investment relationships. Wills, trusts and estate planning can help heirs retrieve funds kept in online accounts. Online accounts not revealed in estate planning documents are escheated, or placed in an unclaimed property fund. You must do your research to determine the location and amount of these funds and complete the forms and documentation necessary to retrieve them.

Consumers of online services, whether that be social media, cloud services, banking or online purchasing, need to direct the fate of personal accounts well before they die. Concerned individuals should leave passwords and other information with trusted family members or a family attorney and set up accounts to allow family access after death.

Obviously, there’s much regulation needed for online industries to resolve after-death issues in a fair, balanced and humane way. The responsibilities and rights of heirs cannot go ignored, even if there is a valid need to protect the privacy of the deceased.

With young adults most likely to have online accounts and die intestate, they are at the highest risk for privacy violations of their online assets. In this case, the contractual law outlined in the service provider’s terms and conditions will govern what is to be done with the account, even if the user has used online asset protection services such as Knotify Me and digi.me. Property laws would prevail if the information is treated as property, resulting in heirs getting access to what could be sensitive or damaging information.

The Uniform Law Commission, a nonprofit, bi-partisan commission with the intent of providing states with legislation to clarify critical areas of state statutory law, created the Fiduciary Access to Digital Assets Act that would allow fiduciaries to manage a decedent’s digital assets, including online accounts. Currently, it has been enacted in 18 states and introduced in 11 more. However, this act does not govern accounts created or held outside of the United States.

The online community needs a global definition of digital assets so these assets may be properly categorized as governed by contractual or property laws. Only then can treatment of digital property be addressed in cases of death both with and without a will. For circumstances involving music and video downloads, further action is needed to protect consumers’ rights to gift or bestow digital collections to legally appointed heirs, as would be done with similar tangible items.

Online service providers should distribute accounts and digital materials of deceased owners according to their wishes. A standard, enforceable method of designating heirs, fiduciaries or account managers must be developed. Digital legacy clearinghouse The Digital Beyond and similar services offer a valuable shift toward adopting this process. Online organizations must embrace a standard practice that honors privacy for decedents while providing appropriate asset distribution to furnish both protection and fair asset handling to consumers. A universal set of definitions and formulae is the only answer to this predicament, short of the onerous task of waiting for case law to accumulate to force the issue with online giants. Until we have such a set of definitions, individuals should consider how to distribute their digital legacies and know the steps they must take to see their wishes carried out.

Nikki Williams
is a bestselling author based in Houston, Texas. She writes about fact and fiction and the realms between, and her nonfiction work appears in both online and print publications around the world. Follow her on Twitter @williamsbnikki or at nbwilliamsbooks.com.