Blog Post

Digital Assets Live On After Death

Michael Brennan • Apr 18, 2012

In the 21st century our lives revolve around social media and the internet. But what happens to our digital profiles after we die?

What would happen to your online persona if you died? After all, it is the digital age, and individuals are creating online personalities on a more regular basis. In addition, banking, and bill pay services are now digital. Many times, an individual does not even receive any paper record that an account exists as confirmation notices are sent to email accounts rather than physical addresses.

Digital assets are those which exist in a solely electronic and non-tangible manner such as email, online photos, and online accounts ranging from PayPal to Facebook, LinkedIn, and YouTube and the content posed on them. Most are protected by user names, passwords, and security questions which, for obvious reasons are not widely shared- not even with loved ones. When an unexpected death occurs, loved ones face a challenge obtaining access to those passwords and the content they access. Further, many people no longer receive paper bank statements, tax returns, or bills, so there is no paper trail for the family to follow to determine what accounts may exist and at which institutions.

Without knowledge of specific access credentials, family members may face substantial issues accessing the decedent’s online universe. The reason for this is that an account user typically accepts a provider’s terms and conditions when creating an account. These terms usually prohibit the user from permitting anyone to access their account except for himself. As such, many providers stand tough when confronted with a decedent’s loved one who is attempting to access or shut down an account without being able to provide the specific access credentials associated with the account. Some online searching has led to some nice summaries of what is required to gain access to some of the most popular social media tools.

For example, Facebook requires a copy of the deceased's death certificate and prevents unauthorized users from logging on, though Facebook will typically also honor requests from family or an executor to permanently close an account.

Gmail is a tough one. It makes no guarantees that it will grant access to the deceased's email account. An individual must provide a name, address, email and a copy of a driver's license or government-issued ID, and a loved one will need a copy of the deceased's email address, including the "headers" that show email tracking details. A copy of the death certificate is also required.

LinkedIn requires a "verification of death" form that includes the deceased's email address, LinkedIn profile URL and a death notice.

Twitter is probably the more reasonable requiring only a name, contact information and relationship to the deceased, as well as a link to a public obituary.

Obviously, there is a wide range of what is required to access an account, and for accounts like email and PayPal, the ability to gain access could be of utmost importance in resolving a decedent’s affairs. In order to minimize the hassle that your loved ones may face in the event of your untimely death, there are some steps that you can take now to plan for the future.

First, make a list of the digital and technological assets that you own including items from laptop and desktop computers to important electronic documents and records to purely digital items like websites you own, email and social media accounts, and online payment accounts. List out your login credentials for all of the assets you have listed. There are some online companies (naturally, based on the topic of this post) that can help you organize and store this information, but creating a hard copy on your own will be just as effective. For items such as online accounts, determine who will be responsible for this information and the assets they access. Keep a list of usernames and passwords and discuss with your chosen individuals where your list will be kept. This way, in the event of your death, that information will be easily accessible by the correct people.

Using a document such as a power of attorney , you can also legally give those individuals the authority to tend to your affairs on your accounts. While it is unclear just how broad of an authority you can give based on those various user agreements discussed above, having proper legal documentation to act should ease some burden on the loved ones who will be tasked with wrapping up your virtual affairs. As always, you should seek an attorney’s advice regarding your own situation, but with the proper planning now, you can add a good amount of organization and clarity to your loved ones in the future.

Michael F. Brennan runs a virtual law office helping clients in Illinois, Wisconsin, and Minnesota with estate planning and business law issues. He can be reached at michael.brennan@mfblegal.com with questions or comments, or check out his website at www.thevirtualattorney.com.

The information contained herein is intended for informational purposes only and is not legal advice, nor is it intended to create an attorney-client relationship. For specific legal advice regarding a specific legal issue please contact me or another attorney for assistance.

By Michael Brennan 21 Sep, 2022
It’s a fairly common situation to find yourself in as a small business owner—for one of a wide range of reasons you’ve decided it’s time to being a new partner into your business in some capacity.
By Michael Brennan 23 Aug, 2022
Have you thought about your beneficiaries under your estate plan? There may be more to it than meets the eye.
By Michael Brennan 02 Sep, 2021
A power of attorney for health care enables an individual to appoint a trusted agent to make medical decisions on his or her behalf if the individual is unable or unwilling to do so for themselves. For example, if a situation arises where you are in an accident and need emergency medical care, doctors will look to a trusted individual to make decisions on your behalf. Typically, this is family members, and technically, most state laws set an order of precedence on who doctors should turn to in the absence of any specific (and legally binding) instructions from the patient. However, the most ideal situation is one in which doctors rely on the instructions the patient has detailed in a valid power of attorney. Powers of attorney for health care do not have many specific requirements for validity. But, they do need to be signed by the patient and at least one witness (this varies by state). Often, someone may decide that they need a health care power of attorney in a pinch. For example, an older parent may be going in for surgery and want to cover their bases if something goes wrong. They may decide the day of the surgery that they would like to name an adult child as their health care decision-maker if something happens, so that child cannot serve as the witness. Typically, an estate planning attorney could witness the document, but that may mean scrambling at the last minute for an appointment or coordinating a meeting quickly on the way to the hospital. Not ideal. Now, however, Illinois has amended the Illinois Power of Attorney Act to permit electronic signatures. The Act states that: “The signature and execution requirements set forth in this Article are satisfied by: (i) written signatures or initials; or (ii) electronic signatures or computer-generated signature codes .” The Illinois Electronic Wills and Remote Witnesses Act permits those witnesses not only to sign electronically, but also to sign remotely. So, instead of a mad last-minute scramble to sign and witness an 11th hour power of attorney, one can be e-signed online through video conferencing with the principal and estate planning attorney quickly linking up on zoom from the comfort of their home, office, or even the hospital bed, with much more simplicity and convenience. The Power of Attorney Act was further amended to permit powers of attorney for health care to be in electronic format. So, it is no longer a requirement to dig the paper hard copy out of the basement filing cabinet and remember to bring it to the hospital. Instead, an electronic copy can simply be sent to the hospital through its patient portal, once that functionality is set up by the health care provider at least. The power of attorney can now easily form a seamless part of a health care record, neatly kept in an electronic medical file. The pandemic of 2020-2021 forced institutions to make things more efficient and reflective of the technologically-centric world we now live in. That is not more evident in many places as it is the area of law. And, few practicing attorneys would tell you that’s a bad thing.
By Michael Brennan 05 Aug, 2021
On June 26, 2021, Illinois adopted the Electronic Wills and Remote Witnesses Act. Plainly, the Act is a generational game changer for estate planning. Gone are the days of scheduling a formal office appointment with your attorney to sign estate planning documents as the law office staff witnesses and notarizes those documents on the spot.
By Michael Brennan 30 Jul, 2021
Preparing a last will and testament has always required the inclusion of original signatures of both the person making the will and witnesses. Understandably, coordinating the signing of the will could pose some administrative challenges, especially for small law firms and solo practitioners—not to mention the many people who elect to draft a will without an attorney’s help—who may not have a crowded office full of willing witnesses. Along with wills, estate plans typically include powers of attorney for finances and health care decision making as well. Those documents also require original signatures from their creators, witnesses, and notaries. Predictably, COVID-19 and the resulting government shutdowns of businesses and encouragement of social distancing and remote work complicated the task of signing and witnessing these important estate documents (Notaries are also now permitted to act remotely under a separate but related piece of legislation). Luckily, in many states, temporary orders permitted the remote execution of many documents, and a framework for conducting remote document signings began to take form. On June 26, 2021, Illinois adopted the Electronic Wills and Remote Witnesses Act. Plainly, the Act is a generational game changer for estate planning. Gone are the days of scheduling a formal office appointment with your attorney to sign estate planning documents as the law office staff witnesses and notarizes those documents on the spot. Now, under the EWRWA, the need for the conference table signing is gone. Wills, powers or attorney, and other important estate documents can be validly signed and witnessed remotely through audio-video communications. More so, “electronic wills”—those not physically printed on paper—are now an acceptable form of will in Illinois that can be probated just as paper wills have for decades. Some of the highlights of the new law are below. Electronic Copies of wills are now valid. Electronic Wills are now an option. The new law defines an electronic will as simply “a will that is created and maintained as a tamper-evident electronic record.” What is “tamper-evident” exactly? Well, the statute defines it as a “feature of an electronic record by which any change to the electronic record is displayed.” So, popular document signature software like Docusign and Hellosign would do the trick. Individuals and Witnesses can now sign on multiple signature pages with one master document being compiled later on. If a platform like Docusign is not used to create and sign an electronic will, there is now an option to use multiple signature pages for the testator and witnesses. In practice, this enables a testator to sign a will while the witnesses watch over audio-video means, like Zoom. They can then each sign the signature page sitting with them at their physical location. The testator and witnesses can then send the originals to a central location (likely the estate planning attorney) to be compiled into one master document. Previously, this was impermissible, as the document would have had to have been signed in the conscious presence of each other. The Electronic Wills and Remote Witnesses Act redefines “presence” to expressly include, “being in a different physical location from another person, but able, using audio-video communication, to know the person is signing a document in real time.” Witnesses can witness signings (and sign) remotely through video-conferencing. As mentioned, witnesses to a will previously had to be physically present with the testator. Under the new law, witnesses can now be remote. If an electronic will is prepared for signatures, the witnesses can simply sign the electronic will after watching the testator sign. If a paper copy is being used, then the witnesses can watch the testator sign his or her own paper copy, and then sign a separate signature page in their remote location. For paper copies, the witnesses and testator must physically compile all the signature pages within 10 days. The person appointed by the testator to compile all the signature pages must state that the signature pages were attached within 10 business days of signing and that the pages were attached to the testator’s complete and correct will for the will t be admitted to probate. So, best practice is to attach those statements to the will at the time of its signing or the time at which the master document is compiled. Wills can be signed electronically. Electronic signatures have previously not been permissible forms of signing a will. Now, however, the new Act changes everything. Testators and witnesses alike can not e-sign wills. To do so validly, the will must designate Illinois as the state of its execution, be signed by the testator or by some person at the testator’s direction and in their presence, and be attested to in the presence of the testator by two or more credible witnesses who are located in the United States at the time of execution. The change of the “presence” requirement is revolutionary, as “presence” now includes being in a different physical location from another person, but able to know the person is signing a document in real time using audio-video communication. Additional Documents, like Powers of Attorney can now be signed virtually Wills are not the only estate planning documents that require witness signatures. Powers of attorney and living wills are just as essential to creating a comprehensive estate plan. Illinois’ Electronic Wills and Remote Witnesses Act also authorizes the witnessing of any document other than a will using audio-video communication. The signatures of the principal and witnesses may be on the same or different pages provided the master document is compiled within 10 business days. While COVID-19 forced the legal industry to adjust, it appears that some of those adjustments were just what was needed to bring estate planning into the 21st century.
By Michael Brennan 15 Jun, 2020
The Setting Every Community Up for Retirement Enhancement Act of 2019 (the SECURE Act) took effect at the beginning of 2020 and has brought some significant changes to how retirement accounts may need to be planned for.
By Michael Brennan 01 Jun, 2020
Here are five things that business owners should be doing now to alleviate the effects of COVID-19
By Michael Brennan 23 Apr, 2020
Executing estate plan documents during the stay-at-home order can be a challenge. But there are still options to get things done now.
By Michael Brennan 16 Apr, 2020
It's something every parent thinks about--who will take care of my kids if I'm gone? It's a huge decision, but it may not be as tough a choice as you think.
More Posts
Share by: