You may have a will and trust, but have you provided for the afterlife of your digital rights?
Many executors, trustees and administrators (personal representatives) have found it difficult to access the online accounts of the decedents whose estate they are administering. This is because most internet service providers (Google, Yahoo, Facebook, Twitter, etc.) limit access, in the interests of privacy and security, to the account owner.
While this is very necessary in the case of living account holders, once the individual passes away, his or her personal representative may want to close the account, post a tribute page, or just notify the decedent’s online correspondents and friends that he or she has passed away.
Some accounts, such as online banking or PayPal, have monetary value or perhaps have automatic charges billed to them, which the decedent’s personal representative needs to stop. Cloud backup accounts, such as Kryptonite or Mozy, may contain information essential to the continued operation of the decedent’s business.
Someday, ISPs may allow for an account holder to designate a successor. But at present, the only way for the personal representative to take over the account is to have the accounts designated as part of the estate or trust.
This should be done in the General Assignment document and/or with a specific reference with account numbers or other identifiers in the asset list.
The trustee or executor — in the “Trustee’s Powers” or “Executor’s Powers” section of the trust or will — must be given the specific power to control these accounts.
Perhaps most importantly, the individual testator must have a list of his or her user IDs and passwords somewhere, and the trustee or executor must be informed of that list’s location.
With these documents in his or her possession, the personal representative should be able to convince the ISP to allow access, or in the worst possible case, obtain a court order requiring turnover of the account.
If you have not yet provided for the afterlife of digital rights, now is a very good time to do so.
(The same problem occurs when a person becomes incapacitated. Therefore, the Durable Power of Attorney should include the same powers in connection with online accounts.)
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