Planning for Your Digital Afterlife

What to do with your digital assets

The digital world is constantly evolving and becoming an increasing presence in our daily lives. From healthcare records to banking to social media, all aspects of our lives may be in the digital world. The evolving question now is: what happens to my digital assets after I die?

Most individuals have not planned for what should happen to their digital accounts or who should have access to their digital accounts after they pass away. For example, imagine the situation where an executor is administering an estate but may not be aware of bills that are being delivered solely by email. This can create problems for executors who are left to navigate the myriad terms of service of each individual account agreement.

Some service providers, such as Google, put the onus on individuals to set up the “Inactive Account Manager” to handle your digital affairs after you pass away. Other providers may consider a request from your executor, but often such requests are denied.

Other states have passed laws to address this issue, but New York has yet to do so. In recent years, a number of bills have been proposed in the legislature to enable executors to have access to a decedent’s digital assets. The Access to Digital Assets Act (A6729-2013, S4895-2013), modeled after the Uniform Fiduciary Access to Digital Assets Act, has been proposed in 2013 and 2014, but died in committee both times.

The NYCLU adamantly opposed the Access to Digital Assets Act on the ground that it was overbroad, providing wholesale access to the estate executor, without protecting consumer privacy. The NYCLU has proposed as an alternative the model Privacy Expectation Afterlife and Choices Act, which provides much narrower terms of access to digital accounts after death.

Currently, there are a few bills pending in the legislature, A04154 and S01565 that provide access to a decedent’s electronic mail, social networking, and or microblogging accounts. Also pending in the senate is bill S01741, which authorizes the fiduciary of a decedent to take control of certain website accounts of the decedent.

At this uncertain time, it is important to consider your digital afterlife when planning your estate. You can make plans through a will, trust, or special arrangements with your account providers, although each of these options has their limitations.

If you’d like to know more about planning for your digital assets, please contact the experienced attorneys at the O’Connell & Aronowitz office nearest to you.