In Delaware, what happens to your digital assets after you die depends on what plans you’ve made and whether you’ve made your plans clear to your executor. Delaware’s laws give your executor very broad authority over your digital assets. So as long as you’ve left instructions and access information, your executor should be able to wrap up your digital estate without too much trouble. If you don’t want your executor to have access to your digital assets, you need to be clear about that as well.
“Digital assets” are any digital record that you own or have control over. This includes email accounts, websites, social media accounts, financial accounts, digital files (music, photos, movies), apps, frequent flyer rewards, or any other online or digital account or file. Your access to these accounts or files is usually limited by the “terms of service” that you agree to when creating an account or buying or licensing a product online.
After you die, it will be up to your executor to deal with your digital assets. If you’ve left instructions, your executor will follow them. If you haven’t left instructions, your executor will have to figure out what to do with them, if anything.
Learn more about What Are Digital Assets?
What happens to your digital assets when you die depends in large part on whether your loved ones are able to get access to those assets. It will be your executor’s job to wrap up your estate, so your executor’s authority to access your digital assets is key. He or she will need access to your digital assets in order to follow your wishes, but also to wrap up your estate -- for example, stopping online subscriptions or automatic billpay, notifying creditors or lenders of your death, cancelling accounts, and so on.
Read more about Why Your Executor Needs Access to Your Digital Assets.
In Delaware, your executor has more authority to access your digital assets than in most other states because Delaware has adopted the Uniform Fiduciary Access to Digital Assets Act (see below).
In 2014, Delaware passed the Uniform Fiduciary Access to Digital Assets Act (UFADAA). UFADAA is a “uniform law” created by a team of lawyers and academics. Although UFADAA was not written for any specific state, its creators recommend that all states adopt it. So far, Delaware is the only state to have done so.
UFADAA aims to give executors the same access to a deceased person’s digital assets, as they would have to that person’s tangible assets. The law provides executors with very broad authority to access, control, and manage a deceased person’s digital assets. UFADAA also gives executors the power to demand access to accounts and files from the companies that control them. So in Delaware, an executor is authorized to use a deceased person’s username and password to go into an email account. And further, if the executor does not have the username or password, he or she can demand access from the email provider.
Under UFADAA, your executor must:
These rules are similar to the rules that your executor must follow for your tangible property. These rules put some restrictions on your executor’s ability to use your digital assets. For example, unless you have left clear instructions prohibiting access, your executor will be able to get into your email account to get information about a bill that needs to be paid, but he or she may not send mail posing as you or gratuitously read your messages.
While UFADAA does put some restrictions on your executor’s access to your digital assets, if you are worried that your executor will have too much access to your digital accounts or files, you can make a plan to keep certain assets private. See “Limiting Access Your Accounts,” below.
Learn more about the Uniform Fiduciary Access to Digital Assets Act (UFADAA).
Because Delaware has adopted UFADAA, your executor should have less difficulty accessing your digital assets than he or she would have in other states. UFADAA does allow your executor to ask companies for access to your accounts, however the process for doing so will be long and trying – in part because most companies are likely to resist. It will be much less burdensome for your executor if you simply leave a list of access information and instructions. That way, he or she can just go into the accounts and do the job without having to either guess about what you want or ask each company for permission.
So even though, your executor will have some authority over your digital assets, it’s still a good idea to leave clear instructions. Write a list of your accounts with usernames and passwords and explain what you want done with each one. 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.
Maybe you don’t want your executor going into your accounts after you die. That certainly seems like a reasonable request – if the accounts and files are private in life, shouldn’t they also be private in death?
The best way to limit your executor’s access to your digital assets is to leave clear instructions about which assets will be useful for wrapping up your affairs, and which should remain untouched.
Here is an example of how you could limit access to email in the letter to your executor:
This won’t work for everyone, and you probably have a gut feeling about whether or not your executor would follow your instructions.
When asking for privacy isn’t enough, you may be able to take steps to hide the assets that you don’t want to share. For example, if you don’t want your executor to access a journal you keep on your personal computer, you can protect it with a strong password that you don’t share. For digital assets hosted by a third party, you could reduce evidence of an account by using only public computers to access it. This suggestion to hide your private digital information has nothing to do with the law, it just reflects that you can take some practical steps to keep your executor from knowing about or accessing some digital assets.
Finally, 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.
(Delaware -- UFADAA enacted)