Who will have authority to access or manage your digital assets after you die? In Michigan, no one will – not even your personal representative. Michigan law does not currently give a personal representative 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 personal representative password and login information -- there will be little that your personal representative can do to get into your accounts or files.
Michigan is currently considering a law (2015 Michigan House Bill 4072) that would give personal representatives some access to and control over digital assets. Under this law, a personal representative would have the right to access a deceased person’s accounts and to request access from the company that controls them. Unlike the Uniform Fiduciary Access to Digital Assets Act, this law would limit access by account’s terms of service agreement (TOS). So a personal representative would not have access in to any digital asset for which the TOS agreement terminates the account on death of account holder. However, even with this restriction, a personal representative could get access to some of your digital assets – even some that you might want to keep private. If you have concerns about your privacy, follow this law, and see a lawyer if necessary (see below).
“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” that you agree to when creating an account or buying or licensing a product online.
Learn more about What Are Digital Assets?
In Michigan, what happens to your digital assets depends on whether you’ve made a plan. At this time, Michigan law gives your personal representative 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 personal representative 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 Personal representative Needs Access to Your Digital Assets.
Because Michigan does not currently grant personal representatives 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 Michigan does not give your personal representative 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 personal representative knows where to find it, and remember to keep it up to date.
Although Michigan doesn’t grant authority to your personal representative to access your digital assets, that is likely to change soon. Lawmakers across the country are finally catching up with the digital age, realizing that personal representatives 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 – including Michigan.
But even if Michigan passes a law granting access to your personal representative, it will still be a daunting task to request access for each of your accounts and files. It will be much less burdensome if you provide access information and instructions. That way, your personal representative 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 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. In contrast, the laws that many states may adopt give personal representatives 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. The new laws make most of your digital assets available to your personal representative to sort through after you die. This certainly raises privacy concerns.
However, because personal representatives do not yet have authority to access your digital accounts and files in Michigan, 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. If Michigan does pass a law that gives your personal representative access to your digital assets, see a lawyer to help protect your privacy after your death.
(Michigan – Non-UFADAA proposed)