It can become very complicated when a person with an active digital life passes away and good measures have not been set up to allow access, according to the American Bar Association’s Real Property | Trust and Estate Law Section in “Digital Property FAQs,”
What happens to digital accounts after a person passes, depends upon the laws in your state and the terms of service the user agreed to when opening an account with each digital platform. Just because you are the executor or personal representative of the decedent, does not automatically give you access to their online accounts. The decedent must have given you specific consent following the rules of that social media platform.
As social media became more entrenched in our culture, the laws about their use and ownership have been developing. Little is simple anymore.
If you die in a state that has adopted the “Revised Uniform Fiduciary Access to Digital Assets Act”, which is something many states have done, your legal representatives will only have access to your accounts, if you’ve activated a setting within the account and provided a direction to disclose the contents of your account to your representatives. Alternatively, if your will specifically allows your legal representative to access your online accounts, your executor may be able to access your accounts.
If you haven’t provided consent in either of these two ways, then your executor will have a struggle ahead.
If you die in a state that has not adopted this law, then the social media platform’s rules will govern who has access to the account.
You cannot legally log into someone’s accounts just because you have the passwords and usernames, if the terms of service governing the account prohibit it. Some online accounts say in the terms of service that only the original user can access the accounts, even if they are deceased!
An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances and may include digital accounts. Contact The Law Offices of Janet Brewer for a consultation and to make sure all your bases are covered.
Reference: American Bar Real Property|Trust & Estate Law (July 12, 2018) “Digital Property FAQs”