In Indiana, after you die, your executor has the authority to access some of your digital assets. This will help with the job of wrapping up your estate, but it could also allow your executor to get into accounts that you might prefer to keep private.
In 2015, Indiana lawmakers also considered adopting the Uniform Fiduciary Access to Digital Assets Act (UFADAA), which gives executors even more power to access online accounts and digital files. However, the bill did not make it out of committee before the legislature adjourned for the year.
“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” (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 Indiana, what happens to your digital assets depends on whether you’ve made a plan. Indiana law does give your executor some authority over digital assets. (Ind. Code § 29-1-13-1.1) He or she can request access to your accounts or files using a death certificate and proof of his or her roles as your personal representative. However, because this is a new area of law and most companies are resistant, your executor is likely to have mixed results with this task – some companies may comply, many others may not.
If your executor cannot access your accounts or files to modify or delete them, they will continue to exist, remaining untouched until the company that manages them terminates the account, at which point all data will be lost.
This uncertain access to your digital assets files is disconcerting because your executor may need to get into them to 1) officially wrap up your affairs, and 2) follow your wishes.
Read more about Why Your Executor Needs Access to Your Digital Assets.
To counter this uncertainty, you can make a plan for your digital assets by leaving your executor information about accessing and dealing with your online accounts and digital files.
The best way to control what happens to your digital assets after you die is to very clearly provide instructions for your executor. Leave 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?
To limit your executor’s access to your digital assets, you could 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.
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.
(Indiana – Existing law, 2015 UFADAA died in committee)