Who will have authority to access or manage your digital assets after you die? In California, no one will – not even your executor. California law does not give an executor any power to access online accounts – even to shut them down. When you die, your online presence will continue on without you, and – unless you leave your executor password and login information -- there will be little that your executor can do to get into your accounts or files.
“Digital assets” are any digital record that you own or have control over. This includes email accounts, blogs, social media accounts, financial accounts, digital files (music, photos, movies), apps, or any other online or digital account or file. Your access to these accounts or files is usually limited by the “terms of service” (TOS) that you agree to when creating an account or buying or licensing a product online. TOS agreements often state that 1) you are the only person who can use the account, and 2) the company has the right to terminate the account when you die. Terms like these could make it difficult or impossible for your executor to access your digital assets after you die.
Learn more about What Are Digital Assets?
In California, what happens to your digital assets depends on whether you’ve made a plan. California law gives your executor no authority to access your digital assets. So unless you leave your loved ones a list of your accounts, instructions about how to access them, and guidance about what to do with them, your digital assets will continue to exist, but nobody will be able to access, modify or delete them. Most accounts and files will just continue untouched until the company that manages them terminates the account, at which point all data will be lost.
This inability for anyone to access your accounts is disconcerting because your executor may need access your digital assets to 1) officially wrap up your affairs, and 2) follow your instructions about what to do with your digital accounts and files.
Read more about Why Your Executor Needs Access to Your Digital Assets.
Because California does not grant executors the authority to access digital accounts, the only way to be sure that anyone will be able to get in to your accounts after your die is to very clearly leave instructions and access information for the person who will be wrapping up your affairs. Leave a list of your accounts with user names and passwords and explain what you want done with each one. That way, even though California does not give your executor the authority to access your accounts, he or she will be able to get in and make the changes that you request. You can leave this information in a letter to be found after you die. Just keep the letter in a secure place, make sure that your executor knows where to find it, and remember to keep it up to date.
Although California doesn’t grant authority to your executor to access your digital assets, that is likely to change soon. Lawmakers are finally catching up with the digital age, realizing that executors need access to digital assets to wrap up a deceased person’s estate. A handful of states have laws that provide this authority, and many more are considering adding it to their statutes. California is sure to follow.
But even if California passes a law providing this authority, it will still be a daunting task for your executor to get the right to access each of your accounts and files. It will be much less burdensome if you simply leave access information and instructions for the person who will wrap up your estate. That way, your executor can just go into the accounts and do the job, without having to ask for permission.
Maybe you don’t want anyone going into your accounts after you die, not even the people most close to you. That certainly seems like a reasonable request – if they the accounts and files are private in life, shouldn’t they be private in death? In fact, internet companies argue this very point – that they should not provide survivors with access to accounts because it would violate the privacy of the deceased person (and possibly the privacy of third parties as well). Some states are considering laws that give executors very broad access to a deceased person’s accounts, with the idea that digital assets are just like assets that you leave in your desk drawer. Such laws would basically make all of your digital assets available to your executor to sort through after you die. This certainly raises privacy concerns.
However, because executors do not yet have authority to access your digital accounts and files in California, the best way to keep your survivors out of your digital business is to simply not provide them with any way to access your accounts or files. Make your account names and passwords difficult to guess, so that even someone who knows you well would be stumped.
You could also leave clear instructions about which assets will be useful for wrapping up your affairs and which should remain untouched. For example, in a letter to your executor you could write something like this:
This won’t work for everyone, and you probably have a gut feeling about whether or not your executor would follow your instructions.
If you want to ensure your privacy after your death, you could see a lawyer to discuss creating a legal protection for your private digital assets. An attorney may be able to craft a provision for your will that explicitly prohibits your executor from accessing certain assets. Or the attorney could help you set up a trust that appoints a trusted person to guard the assets on your behalf.
(California – No existing law.)