Do you know how to secure your digital estate after death?

When the family of a US Marine, Justin Ellsworth, requested access to his emails from his Yahoo! account after he was killed in action in 2015, the company refused referring to its terms of service. The family argued that as his heirs, they should be granted access. After a legal kerfuffle, a court judgment allowed Yahoo! to enforce its privacy policy (and not transfer the account credentials) but ordered the company to provide the family with copies of his emails.

As with traditional assets, without appropriate digital estate planning, your loved ones will struggle with accessing and managing your digital assets after you pass away. And it is not just about securing access to privileged information or valuable assets. Active social media profiles of those who have departed can be distressing for friends and family members. Orphaned online accounts are often vulnerable to hacking and identity theft which can lead to more sinister crimes. There can also be other challenges—if a bill arrives only by email, for example, and the next-of-kin are not aware of the same, the bill could be missed causing barring of the service or account closure.

Also read: How to get your Gen Z kids off social media

Taking stock

The first step towards securing one’s digital estate is to take an inventory of all digital assets. Unlike a fine painting hanging on your living room’s wall, the gems and jewellery in your locker, or one’s farmhouse in the countryside, digital assets are easy to overlook because they are not tangible.

To make the succession of digital assets seamless, you need to list your digital accounts and online assets to make it easier for the heirs. Of course, define a system for organizing this information so your survivors know how to navigate your digital legacy. Print this list of digital assets and accounts and keep in a safe locker or leave with an executor or a trusted individual, or store within a shared vault in an online password manager.

Do understand that not all digital assets are transferable, and hence cannot be inherited. Cryptocurrency, NFTs, domain names, funds available in online accounts like PayPal, digital media files, a blog, et al can be inherited. But the digital assets that are licensed for personal use – like email and social media accounts or subscription services – are not owned by individuals and cannot be inherited (but we will see how we can manage its access).

Once you are done, go through a drill to make sure your trusted circle has access to the information and can execute it as desired. Also, keep coming back to this exercise annually. Technology, and these online services, is constantly evolving and may break access along the way. Plus, we keep signing up for newer services and change our devices. A periodic trial run will make the digital handover seamless in eventuality.

Digital estate planning

The first step in planning digital inheritance is creating a will of sorts and appointing an executor, a trusted individual who would be responsible for managing it after you pass away. Just like a traditional will for tangible assets.

Mind you, legally, you cannot log into online accounts of the departed even if you have the credentials because it violates their terms of service. However, unless contested, this is often overlooked. You should also check out the options available with different online service providers regarding the disposition of your account in case of death.

While Twitter does not allow access to deceased user profiles, it can deactivate an account if an authorized estate executor or an immediate family member provides the user's death certificate. On Facebook, one can specify to have their account automatically deleted after death or set up a legacy contact who will have the ability to manage their memorialized page. Apple has a similar option for Apple ID. Google has an Inactive Account Manager feature which can be set up for a trusted contact to receive a notification if the user's account has been inactive for a certain time (implying death, in our context).

That said, many online services work this out on a case-by-case basis.

The legal perspective

Digital inheritance is a complex legal and ethical issue because of intersections around rules of succession, intellectual property rights, and user privacy.

Moreover, the privacy policies of online services outlined as part of their terms of service act as roadblocks against providing family members access to a deceased user's account. A person’s digital assets often also contain information about other people, and their privacy needs to be accounted for as well.

According to a 2021 paper by Yuliya Kharitonova, a professor at Lomonosov Moscow State University, when it comes to digital assets, intellectual property law, personal data protection, and privacy regulations must also be taken into consideration.

In the United States, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) was conceived in 2015 with an aim to balance the interests of the owners of digital assets, fiduciaries (estate administrators or will executors), as well as the custodians (platforms and service providers). The legislation, now enacted in most states, lets users decide whether their digital assets will be preserved, distributed to heirs, or destroyed. It gives users the power to plan for the management and disposition of their digital assets in the same way they can make plans for their tangible property.

In India though, digital estate planning is not recognized by any legal framework. The will applies to moveable and immovable properties, so the legal challenge is to bring digital assets within the domain of ‘property.’ However, considering intangible property transfer – like copyright transfers – is not alien to our understanding, the former is definitely possible.

According to Soutik Banerjee, a New Delhi-based advocate, since India does not have a law around digital inheritance, the IT Act and Contract Act will provide guidance. The absence of legal bars imply that nothing prevents such a transfer of assets. However, the real test according to him will be “to seek enforcement of the will by service providers and to see how they respond to it – by recognizing it or contesting it.”

That said, in most cases where the inheritance is neither contested nor complex, a mutually agreed upon arrangement should work for most people. Setting up digital inheritance processes can enable preservation of digital assets that can have sentimental value to descendants, commercial value to heirs, as well as informational value to society at large.

Also read: Dyson OnTrac review: A first-gen audio product that’s bold and sophisticated