In the Internet age, much of our lives are online. So, what happens to all your emails, social media accounts, and digital assets when you die? California now has some answers.17
In a recently enacted law, California has set up a system for determining who can access a deceased person’s online data. First, look at any online tools for any intentions expressed by the deceased. Second, look at directions left in a will. If no such guidance is found in either of those two places, the terms of service for each individual site will take precedence.
The law also imposes the same fiduciary duties of care, loyalty, and confidentiality that exists for those managing tangible assets of the deceased. This places a large burden on the digital asset fiduciary to take into account the deceased’s interests when managing the assets.
Although not perfect, this law is a step in the right direction towards empowering people who wish to include digital assets management as part of their estate plan. Unfortunately, it does not automatically provide executors and administrators of estate power to control digital assets when the deceased has taken no steps to include digital assets into their estate plan. Since a vast majority of people fail to engage in any estate planning whatsoever, and those that do are highly unlikely to consider their digital assets, most will be left to the terms and conditions of each site.
In light of this new law, I will be encouraging my clients to consider empowering their executor, or other designated agent, to control their digital assets as part of their estate plan. Those with existing estate plans should have them immediately amended to include this power as well.