Digital assets and social media profiles: What happens to them on death or disability?

Death and taxes, the only things we can’t avoid in life, right?  There are many who work diligently to avoid taxes, and some are successful, but death is a different story.  At some point in time, we are all going to die.  When we die, or become incapacitated, what happens to all of our digital assets, such as images and documents stored in Dropbox, and posts and images stored in a Facebook, LinkedIn, or Twitter account?  What happens to our online profiles?

Frequently, digital assets have personal and sentimental value, but they can also have economic value.  According to one report in 2011, American consumers valued their digital assets at approximately $55,000.  Also, if someone we love dies or becomes incapacitated, what can we do about their online profiles?  If we have an online presence on social media, it might be a good idea to take down or modify the person’s social media site.  But how does that happen if nobody has legitimate access to the site?

It’s illegal to hack into someone’s computer accounts, and social media sites generally prohibit the sharing of passwords.  The Facebook terms of service prohibit sharing passwords, and letting anyone else access a Facebook account.  The LinkedIn terms of service require users to keep passwords secure and not permit others to use the account.  The Dropbox consumer terms of service encourage users to safeguard passwords, and make sure that others don’t have access to them.  None of these terms of service include the words “death” or “dead.”  So what happens to all of these digital assets and to our online profiles when the grim reaper comes our way?

Recently, Delaware adopted the Uniform Access to Digital Assets Act (UADAA).  The Delaware statute is based on a uniform act that any other state could adopt to address the issues of what happens to someone’s digital assets upon disability or death.

Under the UADAA, fiduciaries appointed by the owner of digital assets may access, control, or copy digital assets and accounts.  A fiduciary in this case is someone appointed to care for the assets or estate of a person who is incapacitated or who has died.  A fiduciary may include a personal representative of a decedent’s estate, conservators of the assets of someone who is disabled, persons granted a power of attorney, and trustees of a trust.  Although the fiduciary may access, control, and copy digital assets, the UADAA doesn’t address the disposition of the assets, and who may sell, transfer, or otherwise dispose of them and to whom.

Other states have addressed access to digital assets in some manner, but Delaware is the only state that has adopted the UADAA.  It is likely that many more states will follow Delaware’s lead.

What does this mean for you today?  It’s time to inventory your digital assets, and start thinking about how to protect them in the event of death or disability.  However, at this point, there are more questions than answers, but it is something to think seriously about.  Some may advocate sharing passwords with a spouse, family member, or close friend, but sharing at this point is a breach of the terms of service of a lot of social media sites.

Hopefully some answers are coming soon, but until then, think about what you store digitally and where, and how you might handle your online social media presence if you are no longer around to manage it.

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