My guess is that, on average, we have at least 20 different online accounts. At a minimum, this includes e-mail, social networking (e.g. Facebook, Twitter, LinkedIn, Youtube, MySpace, Flickr), entertainment (e.g. iTunes, Second Life, World of Warcraft) and online bank and trading accounts. But if you also run a business, you probably have other online accounts that could have significant financial value – such as those related to a Web site or blog, Google Adsense, affiliate programs (e.g. Clickbank), PayPal, or eBay.
What happens to these accounts when you die?
Ideally, you should have expressed your final wishes concerning these online accounts and assets before you died. You can certainly gift online assets that have significant financial value and which you both own and are legally capable of transferring in your Will. But you should not be including usernames and passwords in your Will given that those things may change and an update to your Will would require you to have a legal document called a “Codicil” (which you may not bother doing every time you change your password because of the inconvenience and potential financial cost of preparing and executing a Codicil). On top of that, you may not want to disclose usernames and passwords in Wills and Codicils because they may become public documents after your death.
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Rather, you should identify your online accounts and assets (a digital inventory of sorts) and include usernames and passwords in a private memorandum that is placed alongside your Will. You can update this memorandum without having to go through any legal formalities and without the risk of it becoming a public document. Both your Will and this memorandum should be placed in a fireproof box, or in a safety deposit box at the bank, or at a lawyer’s office (again, in a safe place); the person you’ve named as being responsible for taking care of your estate when you die should know where these documents are and have access to them.
Failing to leave behind this vital information could inadvertently lead to some online accounts being terminated for inactivity, while online assets could be frozen or potentially disappear altogether (leaving your beneficiaries empty-handed).
Despite data now being stored in the cloud, you won’t be able to access it when you’re in heaven. (Photo: Shutterstock.com)
Now, let’s take a look at how some of these online accounts and assets are / can be dealt with upon death. You may be surprised to know that not all online accounts and assets are capable of being legally transferred when you die.
iTunes
You may have bought hundreds or even thousands of downloaded songs, videos, eBooks and apps on iTunes. But Apple’s “Terms of Use” say that you are purchasing a personal licence to access (i.e. listen to, watch, transfer onto different devices) the content – but that you do not own the copyrights or intellectual property in the content itself. Furthermore, you’re not allowed to transfer the content to anyone else and you can only use the content on devices which you own or control. Here’s the relevant part:
“You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the Licensed Application and, if you sell your Mac Computer or iOS Device to a third party, you must remove the Licensed Application from the Mac Computer or iOS Device before doing so.”
Rumours circulated earlier this year by the U.K.’s Daily Mail that Bruce Willis was considering suing Apple to clarify who owns content downloaded from iTunes. According to that rumour, Willis wanted to leave his large iTunes collection to his daughters. While this story was denied by Willis’ wife on Twitter, it still brought light to the issue of whether you can transfer your iTunes account when you die.
Now regardless of what Apple’s Terms of Use say, some people will no doubt find ways to transfer their iTunes library to others when they die. They may, for example, illegally impersonate an iTunes account holder (in violation of the Apple’s Terms of Use) or copy their iTunes content onto a physical DVD or hard drive and then gift those things to their beneficiaries in their Will or private memorandum. And, absent a dispute, how would Apple ever find out?
Amazon Kindle eBooks
Amazon Kindle Store’s “Terms of Use” say that you are buying “a non-exclusive right to view, use and display such Kindle Content an unlimited number of times, solely on a Kindly…” and that you may not distribute or otherwise assign any rights to the Kindle Content to any third party. Hence, you would not be legally allowed to transfer this license when you die. Once again, however, some people will find the way to transfer their eBooks upon death to their beneficiaries; they could, for example, gift their Kindle and its contents to their beneficiaries in their Will or a private memorandum and, so long as that person maintained your account and impersonated you, how would Kindle ever find out?
Online gaming characters
Massively multiplayer online games like League of Legends and World of Warcraft allow gamers to acquire and develop characters and items; well it didn’t take long for gamers to realize that they can sell their accounts for real money (I’ve seen prices ranging between $100 and $10,000 for such accounts on buy / sell websites like www.armorybids.com). But, once again, a quick look at the League of Legends’ Terms of Use confirms that gamers do not own any of the intellectual property in the game; among other things, gamers also are forbidden from gifting their account and that doing so may result in suspension or termination (i.e. deletion) of their account.
Paid advertising dccounts
Google Adsense, Kontera, Infolinks, Amazon Associates Program and eBay Partner Network are examples of programs that pay Web site owners to display online ads. These programs can generate thousands of dollars of money every month for these owners. Even posting YouTube videos can earn big bucks. According to Mashable.com, for example, the family behind the viral amateur video “Charlie bit my finger – again” (YouTube’s most viewed amateur video), reportedly earned over $500,000 since that video was posted in 2007.
Google’s Adsense Terms and Conditions say that you cannot transfer your rights under the agreement and that any attempt may result in termination of that agreement; those Terms and Conditions also go on to say that Google Adsense payments are made only to the account holder and may not be transferred or in any manner passed on to a third party unless expressly authorized in writing by Google. Basically, when you die, if you transfer your Web site and domain account info to your beneficiaries in a Will, they should be able to set up their own paid advertising accounts to earn what you were previously earning.
Web mail accounts
Passing on your e-mail account information is important for a number of reasons. First, other online accounts are generally linked to an e-mail account. If the executor of your Will (i.e. the person responsible for administering your estate when you die) and your beneficiaries can access your e-mail, they will be able to review, maintain, backup, transfer, or delete your online accounts. They may also gain access to important documents and conversations; this is particularly important for business-owners who have ongoing relationships with customers, suppliers, partners, employees and other key stakeholders. To prevent against the loss of business goodwill, passing along e-mail account information as quickly as possible is of utmost importance.
It’s interesting to note that while the content of e-mails belongs to you, Internet service providers may not be forthcoming in providing access to that account to your Executor or beneficiaries when you die.
Yahoo
For example, Yahoo’s Terms of Service say that, when you die, your Yahoo account will be deleted:
No Right of Survivorship and Non-Transferability. You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! I.D. or Content within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all Content permanently deleted.
But in 2005, Yahoo was ordered by a Michigan Court to release e-mails of deceased U.S. Marine Justin Ellsworth to his father, John Ellsworth. Yahoo ended up giving the family a CD containing more than 10,000 pages of materials.
Microsoft and Gmail
Unlike Yahoo, Microsoft and Gmail are pretty accommodating when it comes to providing others with access to your e-mail accounts after you die.
Microsoft will send the contents of a Hotmail or Microsoft account (including contacts and emails) on a data DVD after receiving certain documentation from authorized representatives (e.g. your Executor or beneficiaries). Among other things, the person requesting access will be required to provide personal information, a copy of the death certificate, and details concerning the deceased’s account. After receiving this information Microsoft will verify this information and then send a DVD with the deceased’s account information.
Gmail accounts can be shut down upon request by the Executors and close family members. Gmail may also give certain authorized representatives access to the contents of your Gmail account in certain “rare” cases and only after they have met some somewhat stringent tests (e.g. which includes providing personal information and identification to Gmail, a copy of the death certificate, and an order from a U.S. court).
To avoid these headaches, it may be a good idea to make regular (e.g. monthly, weekly, etc.) backups of your sent and received e-mails. I do this with Microsoft Outlook. With proper instructions (again, in a private memorandum that accompanies your Will), a somewhat tech savvy Executor or beneficiaries could locate and import or otherwise access those backups. If you have a private business email account (i.e. a non hotmail, Yahoo, G-mail, etc. account), you could leave instructions on how to access the webmail server and your emails (where hopefully they’ve been stored all along).
Remember: if you don’t plan ahead and your e-mail account remains inactive after you die, it may be terminated and the content deleted. For example, Gmail may terminate your account if it remains inactive for nine (9) months.
Facebook’s Terms and Conditions say that “You will not transfer your account (including any Page or application you administer) to anyone without first getting our written permission.” This essentially rules out the ability to transfer your Facebook profile and other content when you die.
That said, Facebook’s policy is to “memorialize” your profile when told of death. When an account is memorialized, Facebook sets privacy so that only confirmed friends can see the profile or locate it in search. Facebook tries to protect the deceased’s privacy by removing sensitive information such as contact information and status updates. Memorializing an account also prevents anyone from logging into it in the future, while still enabling friends and family to leave posts on the profile Wall in remembrance. Alternatively, Facebook can delete the profile upon request verified by family members (examples of documentation to be provided include: birth certificate, death certificate, certificate from the court establishing that the person making the request is the Executor of the estate, etc.).
Twitter says that when you sign up it “gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software”, which again means that an account cannot be transferred. While the idea of transferring and keeping active a personal Twitter account active seems odd (why would anyone log into your personal account after death and keep tweeting updates?), you would probably want to transfer a business-related twitter account upon your death – particularly if that account had accumulated a large following. But if the Twitter account is left inactive, it may eventually be deactivated. Twitter also has a policy that allows certain authorized persons to inform Twitter of your death to deactivate the account. It seems unlikely it would pursue an individual for logging into a relative’s account after their death, but there are inactivity rules. Your account will not stay around forever if nothing is happening with it.
LinkedIn has a simple “Verification of Death” form which can be completed and submitted to LinkedIn to close a deceased’s LinkedIn account. The form can be submitted online or via fax. Among other things, the person submitting the form will need to know the deceased account holder’s most recent place of employment. It’s a pretty simple form that does not require a death certificate for processing.
GoDaddy
You may be using GoDaddy to host a business-related website or blog (which generally includes having a registered domain name and subscribing to website hosting services). Before your domain name or subscription services expire, GoDaddy will send renewal reminders to you via e-mail. If you haven’t left instructions on how to access and deal with your GoDaddy account in your private memorandum and if your e-mail account is inaccessible or de-activated after you die, then your Web site or blog could go offline for good. This could be disastrous if your Web site makes money and contains vital intellectual property and client information. Once your domain expires, it could be registered by anyone for a few dollars.
eBay
eBay’s Terms of Use say that you will not “transfer your eBay account (including Feedback) and user ID to another party without our consent.” This effectively rules out trying to transfer your eBay account to another person when you die. If provided a death certificate, eBay will close an account rather than transfer ownership. If it is not notified of the death, sales which happen after death would need to be disputed if the items were not delivered as a result of the deceased’s death (and the relatives not having access to the eBay account to understand what needed to be done to honour the sale).
PayPal
PayPal allows an Executor to close a deceased’s account. The Executor will be required to fax a cover page that states that the account holder is dead and that the Executor wishes to close the PayPal account. Supporting documentation – such as a copy of the death certificate, Will or legal documentation that provides the information regarding the Executor, and a copy of a photo identification of the Executor – must also be submitted to PayPal. Once the account is closed, if there are any funds in the PayPal account, the Executor will receive a cheque issued in the account holder’s name.
Final thoughts
As there are no set rules governing how various Internet service providers death with your online account and assets upon death, it’s imperative that you be proactive in itemizing and providing instructions on how to access these via a private memorandum that is kept alongside your Will. If you simply want some of your accounts to be left untouched and shut down, you should provide these instructions in your Will or private memorandum. Interestingly, a recent study by webhosting company Rackspace (in association with the University of London) revealed that 11 per cent of Britons had either left passwords to their digital treasures in their Will or were at least planning to do so.
While some of your online accounts may have sentimental value that you want your loved ones to have, other online assets may have real financial value. Case in point, in 2011 the total value of online assets in Britain was estimated at 2.3 billion pounds, while in the U.S. it was $2.9 billion.
To help organize your online accounts and assets, you might want to consider using an online storage facility. A quick look on the Internet revealed a number of service providers (predominantly in the US and the UK) such as Legacy Locker, Asset Lock, Cirrus Digital Legacy Services, and My Digital Executor which offer to securely store your usernames and passwords for your online accounts and also facilitate digital estate planning, posthumous e-mails, and online memorials.
Michael Carabash B.A., LL.B., J.D., M.B.A. is a Toronto lawyer and creator of the Will-O-Matic software, an online questionnaire that generates a downloadable custom-tailored .pdf Will that is based on your Province’s Wills laws. The .pdf Will comes with free signing instructions, free edits to your Will for one year, and a free comprehensive eBook about Wills in your province. The Will-O-Matic is available exclusively through www.DynamicLegalForms.com.
