Ask Alison FAQ: What Happens to My Digital Data When I Die?
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Ask Alison
by Alison Arden Besunder, Esq. 

Q: I have all these digital online accounts, between my Apple ID and music, e-books, my Facebook account, and Picasa. What happens to all of that data when I am disabled or die? Digitally Yours, Tribeca 

A: Digitally Yours:  This is a great question, one that is a hot topic in the trusts and estates world these days. A newly adopted law in New York State offers fiduciaries (someone acting in a position of trust on behalf of another person, whether as an Executor under a Last Will and Testament, or an agent under a power of attorney, or a trustee) a tool to access online digital assets of another person who has done their estate planning documents.  The law says that if a user has used an “online tool” to administer digital assets, the online designation will control even over a Will or Power of Attorney giving a contrary directive.  Unfortunately, 64% of Americans still do not have a Will, and only 41% of millenials have one.  That leaves the majority of digital users unprotected if something happens to them. 

So, take the following example: Oscar is a 32-year old basketball player with a wife and two children.  He does all his banking online, has an Instagram account with 342,000 followers, a Facebook account for his public likeness and a more private one within his inner circle of 1,000 close friends and family, a Flickr and Picasa account where he stores all his photos (no backups), and of course his Twitter feed.  He was playing War of the Worlds on his iPad tablet and ranked third on the game board, and was at level 1,107 in Candy Crush. His password-protected laptop is in his home office when he suddenly dies in a boating accident. Can his wife legally access his computer and online accounts? Can his attorney? The answer is: probably not.  And, what’s more, depending on what steps Oscar took before he died when he set up his personal settings, a lot of that material might not be recoverable. 

The Solution: Many services now offer the ability to store passwords in a “vault” and designate a person to have access if something happens to the user. LastPass and PasswordBox are examples. Giving someone your passwords or leaving a list is not a viable solution. First of all, most people are uncomfortable leaving a printed list or a computer list of all their passwords.  Also, everyone changes their passwords frequently – usually because they forgot the password in the first place – so a list of that sort doesn’t usually help. Services like LastPass will update the password and save it in your designated devices. There is a blog called The Digital Beyond that maintains a list of online services that are designed to help users plan for their digital death and afterlife or to have loved ones memorialize them after their death. Here are some of the options on the most popular sites: 

Facebook: Facebook devotes an entire page to the topic of what happens to your Facebook page if you pass away. You can designate a legacy contact. And Facebook really does have an app for that: Facebook offers an app called If I die that you can set up at any point before your death to help put your social accounts in order and send out a last message if you wish.

Instagram allows you to memorialize an account

Google: Google allows you to plan your digital afterlife by allowing you to select trusted contacts to receive data from Gmail or Google. It also offers an Inactive Account Manager feature that lets you designate up to 10 trusted contacts to be notified if your account goes inactive, and give them access to your data with your permission.

Apple: In a recent case, a widow was unable to use her late husband’s iPad because she did not know his Apple ID password, and Apple refused to reset it even with the death certificate. Of all passwords, the Apple ID is probably the most critical: it contains a lifetime’s collection of music, books, and other material.

Hotmail lets relatives order a CD of all the messages in a deceased user's account if they provide a death certificate and proof of power of attorney. To begin the Microsoft Next of Kin process, contact the Microsoft Live Custodian of Records at emailingmsrecord@microsoft.com.  

Flickr will keep an account up and mostly open to the public, but if a user had marked any photos as private, the site won't let family or friends into the account to access them.

There are other services like GhostMemo, which allows you to prepare messages to be sent to loved ones with videos or documents. After a set period of inactivity, the service sends a “proof of life” link to reset the timer; if there is no response the service sends out your messages. With the service Afternote, it allows you to designate one or more digital “trustees” who report your death to the service, after which they are given access.

The password savers are very helpful because they offer encrypted space to store passwords and other account information to give to designated recipients after a user dies. Each site has a system in place to verify a user's death before distributing any digital assets.

US Trust put out a Wealth and Worth Study in 2013 that found that 45% of high-net worth people it polled had not organized passwords and account info for their digital lives in a place where heirs or executors would find them, although 87 % said they had a will and knew where their important documents were. While it is not exactly the way anyone wants to spend their Saturday, it is worth the devotion of a few hours to organize your digital life and explore the options many of these services offer for doing so. 


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