There is no question that having access to your digital assets will help your executor wrap up your estate However, your executor is most likely going to have a tough time getting into your accounts, phones, computers, and files after you die. From a one perspective, your executor will be up against the law, which is still somewhat fresh in this area—especially concerning protecting the privacy of deceased persons. Also, for most digital assets, there is not yet a well-established method for getting access after the owner's or user's death. However, you can counter these barriers by leaving your executor with login and password information for your digital assets, as well as instructions about what to do with them. Your executor will be so thankful that you did.
For most people, giving an executor access to these assets is a logical way to make sure the executor has the tools needed to wrap things up. So the will you make with Nolo's Online Will gives your executor very broad powers over your digital assets, including:
Our will aims to give your executor the same level of access to digital assets as he or she will have to your traditional assets -- for example, by making it as easy for your executor to access your online banking or email as it is to manage the bills and letters in your desk drawer.
As with every aspect of the job, your executor must act only in the best interest of your estate and may legally use this access only to wrap up your affairs. However, the potential for abuse exists, and perhaps especially so with digital assets. If you have concerns, read the subtopics below about leaving instructions and keeping digital assets private.
Despite the broad power provided by your will, your executor may have trouble accessing your accounts. Unless you also leave usernames and passwords (see below), your executor's ability to access your digital assets will depend on state law and the policies of the company that owns or controls each account.
Laws are changing quickly in this area, moving toward providing greater access to executors. Meanwhile, you can help your executor by leaving detailed instructions about dealing with your accounts and devices.
Leaving your executor detailed instructions and account information will save time and frustration. You should provide these instructions in a separate letter.
The most useful thing to include in your instructions is a list of usernames and passwords. If you do this, be sure to leave the instructions in a secured place and tell your executor where to find them. You may also want to provide additional guidance, such as:
A letter to survivors can help you with this task.
For better or worse, state laws are moving toward giving executors the right to access to the digital assets of deceased people. This means that your executor may be able to get into your digital assets even if your will doesn't grant access to them.
If you think your executor would respect a request for privacy, you could leave explicit instructions not to access certain information. For example, in a letter to your executor, you could say something like:
On my computer, you'll find the journal I've kept in Word for the last decade or so. If you want to have a look at it, the password is #foxfleet52#. However, please do not read my journal entries for 2010 and 2011. That was a difficult period of my life, and I want my thoughts about that time to remain unknown to my loved ones.
This won't work for everyone, and you probably have a gut feeling about whether or not your executor would follow your instructions.
When asking for privacy isn't enough, you may be able to take steps to hide the assets that you don't want to share. For example, if you don't want your executor to access a journal you keep on your personal computer, you can protect it with a strong password that you don't share. For digital assets hosted by a third party, you could reduce evidence of an account by using only public computers to access it. This suggestion to hide your private digital information has nothing to do with the law, it just reflects that you can take some practical steps to keep your executor from knowing about or accessing some digital assets.
Finally, you could see a lawyer to discuss creating legal protection for your private digital assets. An attorney may be able to craft a provision for your will that explicitly prohibits your executor from accessing certain assets. Or the attorney could help you set up a trust that appoints a trusted person to guard the assets on your behalf.