When you die, who gets your digital assets?
John Ajemian was riding his bike on a perfect sunny day in the Boston suburbs in 2006 when he was struck and killed by a car. He was 43.
“After his death, we wanted to plan a memorial service,” says Marianne Ajemian, John’s sister and one of the executors of his estate. “And he kept all his correspondence and records on his email account.”
In addition to his contacts, Marianne wanted the financial records and correspondence it might hold. But the provider refused to give the family access to the account, so she’s suing them. The case is ongoing.
“If you have a diary, if you have letters, your personal representatives are entitled to see that,” she argues.
As people store increasing amounts of information online in email, social media and cloud storage accounts, what happens to those digital accounts has become a more pressing issue. A recent study by MacAfee found that the average person has $35,000 in digital assets stored online or on their devices.
This summer, the Uniform Law Commission, a group that writes laws for states, drafted legislation that would give executors or other personal representatives access to digital accounts when someone dies. Delaware became the first state to pass a version of it last month, joining only a handful of states that already have more limited laws.
“Essentially, what we’re trying to do is allow the fiduciary to have access, unless the account holder didn’t want a fiduciary to have access,” says Suzanne Walsh, an estate lawyer who helped draft the ULC’s proposed legislation.
“In the old days when I began practicing law, we worked with file cabinets and paper documents,” she explains. “Yesterday’s filing cabinet is now a laptop or a computer or even a phone. Because of that, the nature of our work has changed when we’re administering an estate or assisting an incapable person.”
Balancing access and privacy can be complicated, though.
“There are sometimes third parties who have communicated with the deceased person who expect those communications to remain private,” says Jim Halpert, the general counsel of the State Privacy and Security Coalition, which represents Facebook, Google, Yahoo and others on issues like this. “[They] don’t expect somebody that they don’t know, and in some cases a person the deceased didn’t even know, to be going through the communications.”
People may not want their family reading their emails, he says, though the law commission’s version provides the option to opt out of access.
Moreover, many service providers worry that state laws granting access are in conflict with existing federal laws.
Currently, companies have varying policies about what happens when an account holder dies. For example, Yahoo says in its terms of service that accounts can’t transfer after death, but a spokesperson says the company will give access if the deceased lays out their explicit permissions in their will. Google lets people chose whether their info should be shared or deleted if they die. Facebook gives family members the option to close the account or “memorialize” it, which preserves the photos and posts already visible on the account, but doesn’t give access to private messages.
Halpert says another solution would be to give access to logs that list senders and receivers, but not the contents of emails.
For Marianne Ajemian, that’s not enough.
“John was a writer,” she says. “And so whatever was in that email account could have been very important to us.”
Until she gets into the account, she says she doesn’t know what she might be missing — and how much sentimental or financial value it could hold.
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