We all know that making a will is a critical part of this estate planning process. Ideally, a separate document, usually referred to as the asset register, should also be prepared and updated on an ongoing basis by the will maker. This document acts as a road map to assist the executor to identify assets or entitlements that will need to be accessed, so that they can be held in accordance with the estate plan. An obvious example is a life insurance policy. Not only should details of the policy and the risk advisor be specified on the asset register, but the policy document, birth certificate and anything else needed to make a claim on the policy should be readily to hand.
But what does this have to do with cyberspace?
Our ever increasing use of and reliance on the internet requires that details of online banking accounts websites, domain names as well as social media accounts such as Facebook, Twitter and blogs, together with their passwords, access codes and details of relevant service providers, be added to the asset register. Although a deceased's social networking accounts may not be 'assets' in the traditional sense, the information they contain may be extremely valuable to the deceased and his family – particularly as more and more aspects of our lives are uploaded, in digital form, to cyberspace.
Unfortunately, legislative complexities in America, caused by the lack of interaction between US State and Federal legislation, as well as the privacy policies of social networking providers, have demonstrated that being appointed as someone's executor (or their administrator if they die without a will) may not be sufficient to gain access to the deceased's digital assets.
Facebook, for example, recently refused to give a mother access to her deceased 23 year old son's account following his death in a motorcycle accident, citing corporate policy. Even though she subsequently discovered the password, Facebook changed it without obtaining her consent. And after she sued for access and was successful, Facebook took the page down. A costly pyrrhic victory!
Although the terms and conditions governing social media sites usually contain a prohibition on the account holder making their passwords available to third parties, if the mother had had access to the password in the first place, the death of the account holder would likely never have come to Facebook's notice.
Depending on the scale and complexity of a person's cyberspace activities, it may be advisable to prepare a more detailed document, which not only contains the details of their various digital assets and how to access them, but also includes the content of the 'posting' to be made subsequent to their death, so that they can have the cyberspace funeral of their choice.
The document may also appoint someone more internet savvy than the executor (or executors) to access and manage the deceased accounts and social media sites (including by deleting sensitive information or data where appropriate).
The need to provide for how we want our digital assets to be handled after our death simply reflects the ever increasing role of the internet in our day-to-day activities. And the lack of a cyber 'road map' may well make access to digital assets impossible, not only for our legal representatives, but also for our loved ones.
