Death and your Digital Data

About Jane CollisJane Collis

Jane Collis is a member of the property and private client practice group, specializing in estate planning, wills, international and domestic trusts and probate.

Jane Collis’s full profile on mjm.bm.

The internet should give us all pause for thought, particularly in the context of estate planning. In preparing a will, we focus on home, bank accounts and a lifetime of accumulated tangible treasures that we wish to pass on to loved ones. And we select trusted friends or family members to take responsibility for the task of seeing these things make it into the right hands.

Social networking accounts, and the data they store, are rarely contemplated in this context. For those of us less tech-savvy than the rest, the question may well be, does it matter? The answer must be a resounding YES, as the information that has the potential to be lost can be irreplaceable. Many people use their Facebook or Google account as a personal databank, or store all of their pictures, music, videos and other digital content in “the cloud”. While there is some variation amongst social networking providers as to what happens to the account on the death of the account holder, one thing seems to be certain: access by next of kin to information stored in the account will be limited at best. Some sites will delete data stored in an account after a period of inactivity, while others allow an account holder to nominate a person to “inherit” the content in certain proscribed circumstances. Others, still, like Facebook, “memorialize” an account, which means the profile remains in existence forever, access being restricted to friends only. In part, the lack of consistency in approach with regards to the death of account holders is the result of privacy and probate laws not keeping pace with the reality of the internet, as well as a failure to properly define “digital assets”. As well, establishing policies to deal with the death of account holders is neither sexy nor fun.

A number of online services have sprung to life to deal with the problem of social networking accounts, offering storage for online account information, passwords and in some instances data. Some of these providers offer at least a primary level of storage for free, others for a monthly or annual fee. All profess many levels of encryption and security. Most operate by providing your account and password information to someone you have nominated as your “digital executor” or “verifier”. This person will have to provide a death certificate, or proof of authority to act, or a link to an online obituary, or evidence of an email exchange between you and him or her, or satisfy one of a variety of other tests for ensuring he or she is the appropriate person to access the data. Certainly there may be some merit to using an online service provider, assuming they do not go out of business. It is easy to see that it could be a more effective option than trying to maintain an up-to-date list of accounts and passwords, stored in a safe location, such as a safe deposit box. We all know how often we are prompted to change passwords.

In an ideal world, social networking sites would require you to name a “digital executor” when joining the site and prompt you for an annual update. It is horrifying to contemplate personal data being permanently irretrievable to family members and frustrating that an account should live on in perpetuity if that is not what the deceased would have wished. In the circumstances as they stand, we all need to be proactive. Estate planning should include a contemplation of not only our tangible assets, but your digital assets as well. Wills should specifically address our wishes with respect to digital content and the appointment of digital executors. Enduring powers of attorney should provide for maintenance of social networking accounts for those of us who lose capacity. While there are no guarantees, given the present uncertainty in the law, evidence of your expressed intention with respect to your social networking accounts will be hard to dispute.

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