published Monday, May 19th, 2014

Life and death online: Rules have been suggested for how to handle Web accounts after user's death

A Facebook logo is seen on an iPad.
A Facebook logo is seen on an iPad.
Photo by Associated Press /Chattanooga Times Free Press.
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When you die, should your Facebook page die, too?

What happens to our Web presence when we die?

Our Facebook pages, our email accounts, our online banking apps may seem trivial when it comes to matters of life and death. But in fact, what a person places on the Internet can be important for those left behind for reasons beyond just sentiment.

A loved one may need information from a deceased relative's email address to file taxes while executing a will, for example. Right now, though, the laws regarding online accounts are an uneven patchwork.

Different websites have different rules for accessing these accounts. States have different laws or none at all.

But that might change soon. The Uniform Law Commission, a body of lawyers that creates legislation for states to adopt, has tried to address this issue with the Fiduciary Access to Digital Assets Act.

The act is an attempt to guide local courts about who should take over all of a person's online accounts when he or she dies. Like estate laws, this act gives four types of people the right to access these accounts: a personal representative of a dead person's estate; someone carrying out a power of attorney; a trustee; and someone appointed by a court to act on behalf of a protected person.

Suzanne Brown Walsh, a West Hartford, Conn., lawyer who is overseeing the act, said digital accounts must be treated differently than physical property. A person executing a will used to be able to go inside his deceased relative's house, find paper copies of bank statements and get copies of bills out of the mailbox.

Now the executor of a will may have to hunt through emails to find bank statements. Bills often are paid online. And people sometimes communicate about important documents through other services, like Facebook chat.

How can someone track all this down?

"Our act bridges that gap," Walsh said. "It connects the existing statutes that were designed to govern bricks and mortar and paper to digital acts."

Right now, seven states have laws similar to the one that the Uniform Law Commission is considering. Georgia and Tennessee are not among those states.

But even without these laws, experts suggest that a little bit of planning will help most families after a loved one has died. When writing a will, people should include a statement about who gets access to all of their online accounts after death, said Naomi Cahn, a George Washington University law professor who helped draft the Uniform Law Commission's proposed act.

Still, even when a will covers who can access online accounts, the executor of that will may run into trouble when trying to log on to specific websites. The terms of service agreements on some sites may prohibit other people from accessing the account, even when the original account holder died.

But, Cahn said, the Uniform Law Commission's proposal specifically tackles this issue. If state legislators introduce it into their own laws, this act will allow the executor of the will to get access to the online accounts even when those terms of service agreements do not allow it.

A law such as this also is necessary because current federal laws prohibit those close to a deceased person from getting access to online accounts.

Consider authors. In the past, an author might have written a novel on paper with a typewriter. If the work had not been published when the author died, someone executing the author's estate would likely find it.

Now, however, an author might write that same novel and store it online through an account like Google Drive. Because of the federal Stored Communications Act, Google could not give out someone's user name and password, and a family member would not find that novel.

Or consider bills and bank accounts. This information used to be available on paper. Now, many people keep all their banking information online. Someone executing a will would have trouble finding this information, which might be needed to pay state and federal taxes.

"You can't administer an estate or a trust effectively if you don't have access to communications with banks," Walsh said. "Nothing comes in the post office anymore."

Right now, many digital companies have their own policies dealing with these issues, but they differ. On Twitter, an account will be deactivated when a family member or the executor of an estate provides the website with the user's death certificate.

On Facebook, family members can ask for a page to be deleted, or for it to become a "Memorial Page," where people can post condolences.

On Gmail, users can decide the fate of their account before they die. If they don't decide their account's fate, though, Google will turn the account over to a relative only in rare cases.

The Uniform Law Commission will vote on this act in July. If it passes, lawmakers in every state will have access to it, and they can propose it in their own legislatures.

Contact staff writer Tyler Jett at tjett@times freepress.com or 423-757-6476.

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