by Jon M. Garon
Each day, an ever-growing percentage of the population moves
important information to the cloud—online services storing correspondence,
contracts and legal documents, photographs, financial records and more. Although
many of these items have little financial or emotional importance, others may be
critically important to the management or worth of an estate. The website of a
modern writer may rival the importance of his or her published and unpublished
manuscripts. A child’s Facebook page can serve as a touching memorial for
parents in grief. A list of friends or followers may have significant financial
value to a closely held business with a value comparable to a customer list or
similar corporate trade secrets.
Although death is inevitable, the effect of death on one’s digital
assets is far from clear. Very few laws address the issue. Moreover, many of
these assets are governed by contract or vendor practice rather than state
In 2004, Yahoo! came under significant public criticism for
enforcing its nontransferability provisions when Justin Ellsworth, a 20-year-old
marine, was killed in Falluja, Iraq, and Yahoo! refused to provide his father
with access to his account.1 At the time, Yahoo! explained that it
would “turn over the account to family members only after they go through the
courts to verify their identity and relationship with the deceased.”2
Yahoo! also added pressure on the family because “[a]fter 90 days of inactivity,
Yahoo! deletes the account.”3 A court ultimately gave the contents of
the late Ellsworth’s account to his parents, but upheld the terms of the
contract denying the right to continue using the account.4
The opinion was unpublished and had no binding precedent. For Yahoo!, it also
did not affect its policy. Even today, Yahoo! provides the following limitation
in its contract:
No Right of Survivorship and Non-Transferability. You agree that your Yahoo!
account is nontransferable and any rights to your Yahoo! ID or contents within
your account terminate upon your death. Upon receipt of a copy of a death
certificate, your account may be terminated and all contents therein permanently
In contrast, Facebook has a procedure dedicated to addressing issues with
[Facebook] will process certain special requests for verified immediate
family members, including requests to remove a loved one’s account. This will
completely remove the profile (timeline) and all associated content from
Facebook, so no one can view it. For all special requests, we require
verification that you are an immediate family member or executor. Requests will
not be processed if we are unable to verify your relationship to the
The Facebook policy, however, is not contractually included among
terms of service. Moreover the provision creates a rather broad category of
potential agents to control the decedent’s Facebook account. The voluntary
provision does not require an executor nor differentiate among family members.
This may prove more convenient for most families, but it exacerbates the problem
for those families where spouses, children or partners are not in agreement
regarding the decedent’s wishes.
States struggle to provide statutory protection
Recognizing the growth of this issue, five states have taken action to
address various aspects of these rights.7 The first of these was
enacted in Connecticut in 2005 covering only email.8 The Connecticut
law appears to be a direct response to the outcry generated by the treatment of
the Ellsworth family by Yahoo!. A very similar law was enacted in Rhode Island
in 2007.9 Oklahoma and Idaho have followed with similar laws,
expanding email to include blogs and social media such as Facebook and
The laws are quite limited. Oklahoma’s statutory provision, for
example, provides that the “executor or administrator of an estate shall have
the power, where otherwise authorized” to control the account. In the case of
Yahoo!, the subscriber has agreed in the non-negotiable, clickwrap agreement
that the account is not transferable.11 As such, the lack of
transferability or access would still govern. Since this policy applies to
services such as the Yahoo! photo-sharing site Flickr, a decedent’s entire photo
history will be wiped out upon death.
Indiana has attempted to go one step further with a more
comprehensive statute. The Indiana act requires that the trustee or
representative of the estate be provided “access to or copies of any documents
or information of the deceased person stored electronically… .” The Indiana act
also requires that the information not be destroyed for two
While still a relatively simple provision, the Indiana statute improves over
other laws because it is not limited to particular types of Web services. The
Indiana law extends to cover photo-sharing sites, mobile apps and a variety of
other online services.
The Indiana statute has two limitations, one for disclosure of
information that would violate federal law and another for information for which
the decedent would not have had his or her own access.13 There is
certainly the potential for overlap with federally protected information, such
as financial records, health records or student records. Each of these types of
stored electronic information is subject to federal privacy laws, so some of
that information may preclude a trustee from gaining access. The law may provide
too much access for a trustee if the documents are confidential or privileged
and of a type that should be controlled by one’s employer rather than one’s
family. Still, the law is a significant improvement over the majority of
Even the broader Indiana law does not address the continued use of
an existing account. While this is not likely to matter for a personal email
account, it could make a difference if that account was used in a small business
or as the account to which notices of copyright violations are to be
sent.14 It could also make a significant difference if a personal
blog or Twitter account is used to promote a business.
Good preparation matters
For important online assets, everyone who
spends valuable time online should begin planning for the inevitable day when
someone else will need to take over their online presence. The digital estate
management firm Entrustet has analyzed Facebook’s user data to suggest that
potentially 408,000 U.S. Facebook users (and 1.78 million users worldwide) will
die in 2011.15 The planning is important for both testamentary and
conservatory purposes, so that appropriate steps can be taken if a person were
to become incapacitated as well as to pass away. The good news is that careful
inventories will also help manage the deluge of account information that is
increasingly becoming a burden in life as well as death.
As with any estate plan, the first step is a careful
audit of one’s assets. In the case of either death or incapacity, the first
important step is to track down and identify all of the assets, liabilities and
other concerns that must be addressed.16 The list may quickly become
- Email accounts and cross-platform login information;
- Websites, hosting services and URLs;
- Facebook, Twitter, LinkedIn, Google+ and other social media accounts;
- Audio, visual and audiovisual content–MySpace, GarageBand, YouTube, Flickr,
Picasa, Google Docs, Scribd, etc.;
- Financial services accounts including banking, stock trading, credit card,
prepaid cards, pre-paid accounts, shopping accounts and auto-debiting
- Devices including computers, USB drives, smart phones and PDAs;
- Medical records;
- Cloud computing services and remote storage; and
- Video game, virtual world and other accounts.17
As an ongoing matter, users should begin keeping an updated log of each new
account they open along with the user name for such account. The password for
each account should also be kept, but that information should be maintained
separately from the list of accounts so that the estate plan does not serve as a
skeleton key to unlock the security measure undertaken to protect the assets in
life. Any physical assets—disks, back-up media, USB drives, computers, mobile
devices—should also be inventoried.
All of us are becoming archivists of our lives. The time and
effort needed to manage our digital estate will be a function of the size of the
material one creates and the clarity with which we have managed that
Older media and media difficult to access should be replaced. It
is better for the owner of the content to decide whether to transfer files from
3.5 diskettes (or worse—five-inch disks) than to make the trustee go to the
expense. Since the trustee may be unable to assess the value of the old media
without transferring it, the trustee will be compelled to waste time and money
for files of little value. Media that is not worth transferring can be labeled,
either in the inventory or physically on the media. Labeling will make a
tremendous difference in managing one’s assets after death.
On a computer and in email attachments, valuable files do not
stand out as more important than the others. A person’s portfolio of prize
photographs, unreleased songs, novels or screenplays will look much like the
clutter of work memos and hastily snapped photos from one’s phone. Items of
value should clearly be marked. Again, this can be done both on an inventory
sheet and on the media. A “do not delete” directory sends a clear signal to
treat that folder with extra care.18
When planning for the eventual disposition of one’s
digital estate, a person should carefully select who will be assigned to handle
the management. The delegation may be two-fold. The person who is best able to
read the media, navigate online and manage access may not be the best person to
decide what is important or how to fulfill the testator’s wishes. The neighbor
kid who programs electronics and sets up the family’s wireless network is an
unlikely candidate for trustee, so the different tasks should be separated.
The delegation of authority may require multiple or co-executors so that
there is appropriate competency to handle the digital aspects of the estate as
well as the other assets. Alternatively, the trustee may need to delegate agents
for certain tasks and the estate plan should give the trustee that
As described in some of the usage policies, some companies
require notification and proof of death to provide family access. Others may
require a court order. But it is much easier to access the accounts with the
appropriate user name and password information. The passwords should be provided
in a manner that keeps them separate from one’s accounts. Encrypted directories
or hard copies kept safely will provide a reasonable balance between present
security and future frustration. For more valuable assets, use of a safe deposit
box or deposit with an attorney may be appropriate.19
For assets that have significant financial importance from their ongoing
usage, the delegation may require a migration to a vendor that permits
assignment or to some other strategy. In some cases, it may be prudent to
transfer ownership to an LLC or solely held corporation—or form one if
necessary—so that the assets are owned by an entity with perpetual life.
Ownership of the entity can transfer (in most cases) without triggering the
closing of the account. This is a significant undertaking, but for blogs, domain
names or other assets with large good will value, the investment may be
A number of vendors have begun offering their services to assist with these
steps as well. Such services may be quite helpful, but as with any new industry,
there has yet to be a long track record of proven success and reliability. These
tools will prove quite useful, but one should be cautious before entrusting
one’s valuable assets to an unknown company.
The present laws protecting digital assets
simply do not do enough to address the need to protect digital assets at the
time of death or incapacity. The public must begin taking care to assure that
the important remembrances, business assets and other information they have put
online is available to their heirs in the manner they choose.
Although new laws are certainly necessary, individuals can do a
great deal to protect these assets and plan for their friends and family. By
inventorying one’s digital assets, planning for the future and making the
material available to one’s executor, a person can go a long way to make their
memories live on.
Jon M. Garon is director of the Northern Kentucky University
Chase Law & Informatics Institute and is a professor of law at the
university’s Salmon P. Chase College of Law.
1 “Yahoo! denies family access to
dead marine’s e-mail,” by Jim Hu, CNET, Dec. 21, 2004, http://news.cnet.com/Yahoo-denies-familyaccess-to-dead-marines-e-mail/2100-1038_3-5500057.html(last visited Dec. 5, 2011).
4 Jennifer Chambers, “Family gets GI’s e-mail,” The Detroit News,
Apr. 21, 2005 at 1.
5 Yahoo! Inc., Terms of Service, http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html
(last visited Dec. 3, 2011).
6 Facebook Help Center, How do I submit a special request for a
deceased user’s account on the site?, https://www.facebook.com/help/?faq=265593773453448
(last visited Dec. 3, 2011).
7 Digital Beyond, Digital Estate Resource, www.digitalestateresource.com/law/ (last
visited Dec. 7, 2011).
8 C.G.S.A. §45a-334a (2005) (Connecticut Public Act No. 05-136)
(An Act Concerning Access to Decedents’ Electronic Mail Accounts).
9 Rhode Island §33-27 (2007) (“Access to Decedents’ Electronic
Mail Accounts Act”).
10 58 Okl. St. Ann. §269 (2011); I.C. § 15-5-424 (2011) (Idaho
11 Naomi Cahn, “Postmortem Life On-Line,” 25 Probate and Property
36, July/August, 2011 at 38.
12 IC 29-1-13-1.1 (2007) (Annotated Indiana Code).
14 See, e.g., Ellison v. Robertson, 357 F.3d 1072 (9th Cir.
2004) (AOL failed to have its copyright notice account forward emails to a staff
member, vitiating its protections on the notice-and-take-down safe harbor).
15 Entrustet HIWI Blog, http://blog.entrustet.com/2011/01/17/408000-us-facebook-users-will-die-in-2011-andother-interesting-facebook-data/
(last visited Dec. 3, 2011).
16 Dennis Kennedy, Estate Planning for Your Digital Assets, Law
Practice Today, March 2010, at http://apps.americanbar.org/lpm/lpt/articles/ftr03103.shtml
(last visited Dec. 4, 2011).
19 Cahn, supra note 11 at 38.