“It’s big. It’s real big,” says Deborah Matthews, an Alexandria-based estate planning and probate attorney who began writing digital asset rights into her Powers of Attorney several years ago. “I ask my clients the same thing I ask them about their safe deposit boxes: Who has access? Who has a key?”
Under current law, the answer is frequently no one. That’s because most states classify digital and physical property differently, and most social networks and tech companies prohibit the sharing of passwords. Even states that do grant digital access after death limit the privilege; Virginia, for instance, passes accounts to personal representatives of the deceased — but only when the deceased is a minor.
To further complicate the issue, people frequently have no idea how much they’re even leaving locked up. There’s your Facebook and Twitter, sure. An e-mail account. A bank and credit card, maybe. But if you actually go through and catalog each and every single account you maintain online, the sum total is … kind of shocking.
I know, having tried to compile such a list myself. If I died tomorrow (er, God forbid), these are all the things my parents couldn’t access:
And that’s sad, says Matthews, the Alexandria attorney: There are no shortage of stories about children who couldn’t access years of family photos locked in their mother’s Snapfish, or grieving parents who couldn’t take their child’s Facebook down after she died. But more urgent, and potentially more dangerous, is the fate of paperless digital properties like bank accounts and credit cards. Often when someone dies or is incapacitated, those accounts seem to “disappear” — until survivors begin hearing from collection agencies. Matthews once had a client whose husband left neither his bank account ID nor password; when the bank refused to grant her access to the account, she couldn’t pay her bills.
“That becomes very challenging,” Matthews said. “Everyone likes the ease of not using paper, but you have to have back-ups.”
That’s particularly true if you live in a state that isn’t Delaware. Several states, like Connecticut, Idaho and Indiana, do grant some rights to heirs or personal representatives. But no other state has passed such sweeping legislation — and the majority of states have no digital asset guidelines in place at all.
That means concerned digerati need to specifically write digital access rights into their wills and powers of attorney, the document that grants someone access to manage your affairs, Matthews says. (The Digital Beyond, a book and Web site on digital estate-planning, provides some guidance here.) Just as important, she argues, people need to compile a list of all their accounts, like the one I wrote above, and all their account passwords — even if it’s against site Terms of Service.
The tech industry isn’t necessarily thrilled with that counsel or the push for legislation to free up accounts. Jim Halpert, director of an industry group that includes Google, Yahoo and Facebook, told Ars Technica that he’s concerned about privacy: Should I die, for example, do I really want my mother to see my e-mails with my doctor? More importantly, does my doctor want my mother to see those e-mails?
That’s a legitimate concern, Matthews says, but she isn’t swayed by it. After all, current law lets a personal representative access your physical medical records. E-mail might be more personal, more messy, more painful to see, even — but so is everything in the aftermath of a loved one’s death.
Of course, until more states follow Delaware’s example and shed some clarity on the issue, people will have to decide for themselves. According to the Pew Research Center, more than a dozen states are debating laws to grant digital account access. Unfortunately for some, those changes won’t come soon enough.