What Happens to Your Facebook Photos When You Die?

Law Professor Naomi Cahn discusses how to plan and manage your digital assets.

Naomi Cahn
Law Professor Naomi Cahn is an expert on what happens to your digital assets when you can no longer manage them.
December 02, 2013

Your social media and banking account passwords may not seem like details you need to include in your will, but in an increasingly digitized world, these pieces of information may be more important than you think.

George Washington University Professor of Law Naomi Cahn is an expert on issues related to trusts and estates, and she explained how to plan and manage your “digital assets” in case something happens to you. Loved ones may have trouble making bill payments and accessing photos or other personal information, since many of these items are not accessible through power of attorney. Ms. Cahn, who also serves as the Harold H. Greene Professor of Law, talked to George Washington Today about what exactly digital assets are and the importance of including them in estate planning.

Q: What does the term “digital assets” mean?
A: Digital assets are, roughly, any accounts you have online and any files you store on your computer, smartphone or in the cloud. These assets range from online banking accounts to email accounts. They also include pictures, videos, social media accounts, domain names, games and related sites, professional sites and backups. 

Digital assets go beyond online accounts and include personal or work computers and their hardware and software. According to the computer security company McAfee, the average American values his or her digital assets—which include photo libraries, personal communication and entertainment files—at $30,000 to $50,000. The figure is based on sentimental attachments and financial investments in music, application and software purchases. Note that while you may think you own many of these assets, they may be under licenses and terms of service agreements that stipulate that you can only use them during your lifetime and you cannot transfer them (or the passwords) to anyone else.

Q: You've written about the difficulties that happen when a person is unable to access the digital assets of a loved one after he or she has passed away. Can you describe some of these issues? 
A: Imagine someone not being able to access an online bank account or payment system for someone who has died. I still see messages on Facebook from friends who have been dead for several years asking me to friend them because their family members may not have been able to close or memorialize their account. Only a few states have laws on these issues.

Q: What should a person be thinking about if they want to include digital assets in wills and estate planning? What are the best planning practices?
A: First, people should list their accounts and their passwords somewhere safe. There's no one way to keep passwords safe, of course—but never list them in a will. Wills become public, formal documents that can be hard to change. A will might instead make a reference to a separate document that contains more detailed information about the accounts.  

You can keep a list in your own handwriting, too. For more security (and legibility), you could keep the list on your computer, and even password-protect it—so long as you can remember the password. You can also use an online password protection company. CNet provides comprehensive reviews of technology and lists more than 700 password managers. Among the most widely used is 1Password, which, for a fee, can help you not only create strong passwords, but also help you remember and, if necessary, restore them. Several free services, including Password Safe and LastPass, similarly offer the ability to help you create and retrieve your passwords.

Second, people should be aware of the terms of service governing their accounts, which determine what happens when a person can no longer manage the account. Each time you set up a new account, there will probably be something in the terms of service that addresses what happens upon incapacity or death. Google now has an Inactive Account Manager that can help people share online data or provide notification if they’ve been inactive for a long period of time. Facebook allows your page to be memorialized.

Finally, people should decide what they want to have happen to their accounts, and then work toward making that happen. There is a lot of uncertainty about whether their wishes will be carried out, but it still makes sense to indicate what their intent is with respect to those digital assets that are capable of being inherited, such as domain names.

Q: Are people aware of the importance of their digital assets? What about estate planners?
A: People are just beginning to realize the importance of planning. Seven states now have laws on this issue. The Uniform Law Commission, a group with which I am working, is hoping to develop a model law that can be passed in each state. Many different stakeholders, ranging from Internet service providers to digital media providers to estate planning attorneys, are involved in the drafting process and we’re hoping to have a final version by next July. People put off doing their wills, or they think they don’t have anything valuable. If you stop to think about everything that you have on the Internet, then you’ll realize the importance of planning for what should happen to all of it in case you can’t manage it yourself.

Ms. Cahn is also the author of "Finding Our Families:  A First-of-Its-Kind Book for Donor-Conceived People and Their Families."