Unfortunately for executors, there is not much guidance to be gleaned from the law when it comes to dealing with a deceased’s digital assets. Quite simply, the law has not kept up with the rapid pace of technology in relation to what an executor should or should not do with a person’s digital assets upon their death.
That being said, drawing upon what the law does say with respect to how an executor is required to deal with the deceased’s assets and what we know about digital assets in general, here are the steps an executor should take with respect to the deceased’s digital assets:
Steps for Dealing with a Deceased’s Digital Assets
Secure all of the deceased’s digital devices including computers, tablets, smartphones, etc.. It is more than likely that these devices contain personal information. As such, an executor would be responsible for keeping this personal information private and for protecting it against identity theft.
Make a detailed inventory of all of the deceased’s digital assets and accounts. This would include those devices secured in step one as well as computer files, digital photographs, and online accounts including PayPal, email and social media. A thorough review of the deceased’s personal papers and a search of his or her browser history can help uncover what digital accounts he or she had. Contact the lawyer who prepared the deceased’s Will as he or she may have information in the file as to what digital assets and accounts the deceased owned when the Will was signed.
Make an inventory of all of the deceased’s usernames and passwords. But before accessing any of the deceased’s accounts, the terms of all service agreements entered into by the deceased must be carefully reviewed. The agreement may specify that only the account holder can access the account. This means that even if an executor is aware of the deceased’s username and password, using them to access the account would be a breach of the service agreement for which the executor could be held personally liable.
Review the deceased’s Will for any clauses relating to his or her digital property. Look for any gifts of specific digital assets as well as any authority or power granted to the executor to access the deceased’s digital accounts. Even if the Will gives the executor the explicit authority to access digital accounts, with a view to reducing an executor’s personal liability, a better option would be to use that authority to request the contents of the digital account from the service provider. As mentioned in the previous step, an executor who accesses a deceased’s digital account may be in breach of the service agreement
Contact each service provider and take all necessary steps to retrieve the deceased’s account information and/or ensure the information is deleted and all of the digital accounts are closed. Many service providers have policies regarding what steps need to be taken and what documents they will require in order to delete the contents of the account and close the account of a deceased account holder.
Any digital device not gifted to a specific beneficiary would form a part of the deceased’s household goods. Before transferring a digital device to a beneficiary or selling it, ensure that the browsing history, files, and any passwords stored on the device itself are completely deleted.
At any step in the process, if questions arise or you are not sure what to do next, contact professionals who have the experience you require, whether it be in estates or dealing with digital assets and accounts.
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