Digital legacy

The digital age poses new chal­lenges to in­her­i­tance law: what actually happens to my digital profiles, accounts, texts, and data when I die? Digital in­her­i­tance is a sur­pris­ing­ly complex subject with many factors. On the one hand, there are legal questions: who actually owns my data? Who decides what happens to my online profiles in the event of my death? These and numerous other questions concern not only the leg­is­la­tor, but also internet and online service providers.

In addition, ethical and personal questions also arise: what parts of my digital presence do I want to make available to my heirs after I die? Which person do I choose to give access rights to in the case of my death? Is “digital legacy” so important that I need to sort it out now? These and many other questions will be answered in our guide.

Living in the age of in­for­ma­tion means that you’ll leave some digital traces behind. Online profiles on Facebook, Instagram, Twitter, etc. are protected with complex passwords and encrypted to make them as secure as possible. Many of us post, comment, like, and share content so often on the internet that social media now makes up a big part of our daily com­mu­ni­ca­tion. The average person spends an essential part of their life on the internet and leaves a lot of sensitive in­for­ma­tion behind in the form of documents, files, images, videos, and much more.

If someone dies un­ex­pect­ed­ly, not only are they survived by those around them, but also by their online profiles and other content on the internet. Passwords are usually only known by the deceased person. In this case, it is much more difficult for relatives to properly take care of the digital legacy. This is why it is rec­om­mend­ed to manage your digital estate through­out your life.

This is es­pe­cial­ly important when you store con­fi­den­tial documents online (using a cloud service, for example), or when you are con­duct­ing important cor­re­spon­dence via e-mail. In the event of a sudden death, it is often very important that private messages and files can be accessed e.g. by the employer. For most online profiles, for example, it makes sense to de­ac­ti­vate them or turn them into memorial pages. Data storage may contain important documents and files for relatives. It makes sense to set an automatic reply for fre­quent­ly used e-mail addresses so that the contact people know that the person they are trying to reach has died, and they can then be referred to another person if necessary. Or the account could just be deleted, of course.

When it comes to physical data media, the digital legacy is com­par­a­tive­ly simple, as these are simply trans­ferred to the heir(s) as pos­ses­sions. In most cases, hard drives, devices, and USB sticks are not protected by passwords or if they are, relatives often know the passwords. Nev­er­the­less, login data and passwords should also be regulated so that relatives can access the data they contain. These can be private files such as photos and videos as well as important documents.

The digital legacy becomes more com­pli­cat­ed if the deceased person has been con­duct­ing business on the internet. If, for example, they ran a YouTube channel that will continue to generate ad­ver­tis­ing revenue on a regular basis, the flow of money will need to be managed. The same applies to popular Instagram profiles that contain sponsored posts and through which ad­ver­tis­ing contracts were finalized. In short, digital legacy is enor­mous­ly important to in­flu­encers, content producers, and other people that make money online.

Digital currency also needs to be managed. What happens to your digital assets such as crypto currency (e.g. Bitcoin) and PayPal credit after your death? It gets more com­pli­cat­ed with online contracts for SaaS services, orders placed online that haven’t been received yet, and online sub­scrip­tions for digital content (e.g. streaming services or e-book libraries). The gaming sector is also affected since content here (e.g. items in online games) can be worth real money.

Only when you take a closer look at the subject, does it become clear how much data, accounts, profiles, and other digital pos­ses­sions you actually own. If you don’t manage your digital pos­ses­sions ef­fec­tive­ly, you’ll quickly overwhelm your heirs. In other words, if you are in­ter­est­ed in reg­u­lat­ing your pos­ses­sions and not wanting to burden your heirs, managing your digital legacy is an in­dis­pens­able part of it.

The digital legacy is an important issue when it comes to in­her­i­tance law. However, be­reave­ment also plays an important role in the death of a loved one who was very active on social media. Because an online profile continues to exist after the owner has died, it is still possible to interact with it. This is es­pe­cial­ly prob­lem­at­ic if the people writing have no idea about the death. If the deceased person continues to appear in their newsfeeds e.g. by being tagged in posts or by people sharing content on their timeline, this can trigger negative emotions for relatives and hinder the mourning process.

In some cases, relatives don’t want the death of their loved one to be splashed all over social media. However, if the death of someone with a large social reach becomes known, their profile runs the risk of un­in­ten­tion­al­ly becoming a memorial page. People may use older posts from the deceased person to express sympathy by com­ment­ing on them, which can then further intensify the mourning process for others since they want to mourn privately without the ad­di­tion­al pressure of social media or having to moderate the profile.

A public stage online is un­for­tu­nate­ly also a breeding ground for ha­rass­ment. This is one of the reasons that it’s important for you to carefully manage your digital legacy.

Of course, nothing happens at first; your online profiles and accounts will still be there along with all the data, content, messages, and cur­ren­cies stored on them. Your e-mail address will continue to receive e-mails, your sub­scrip­tions will continue to run, and your profiles and posts on social media will continue to exist. It’s up to your loved ones to take the next step.

Depending on how carefully the digital legacy has been prepared, the heirs must first obtain an overview: Where was the deceased active on the internet? Which contracts did they finalize? Which data and pos­ses­sions do they have stored online? Contracts should be ter­mi­nat­ed as soon as possible and profiles in social networks should be de­ac­ti­vat­ed or deleted com­plete­ly. Facebook, for example, also offers the option of con­vert­ing the profile in question into a memorial page, but not every social network has this function. In most cases, you’re advised to delete the profile. How easy this is depends on the network. With some providers, accounts can be deleted using a simple feature or a contact form, while others require proof of the user’s death.

If you have not left your current passwords in your will or in another document, it will be a lot harder for others to work with your digital legacy. In this case, your relatives must contact the providers directly and, after showing proof, they will be sent the re­spec­tive password or can reset the existing one. In many cases, however, access to the connected e-mail account (to which the new password will be sent) is helpful.

The most effective step is to delete unused or un­nec­es­sary profiles and accounts and to keep your own digital presence to a minimum. Con­sci­en­tious use of the internet and personal data also leads to a clearer digital legacy. In addition, it is helpful for you and your relatives if you keep a list of the relevant login data – in a safe place, of course – and keep it up-to-date. This is made a lot easier by using a password manager since you can just pass on the master password. It can also be useful to set up a security question for relevant services that only people close to you can answer.

If you make a list, you can also express wishes about what should happen after your death – such as "delete profile com­plete­ly," "become memorial page," or "announce my death on my social networks with a short statement." In the case of highly sensitive accounts, such as online banking, payment services, and crypto cur­ren­cies, it is highly advisable to prepare a pre­cau­tion­ary power of attorney. This will ensure that your heirs have direct access to the assets stored online. You could also leave the login data with a notary or write it down and lock it in a safe.

Last but not least, it is important that you fa­mil­iar­ize yourself with your provider’s terms and con­di­tions. How do social networks deal with accounts and how complex is the deletion process? If you have finalized contracts online, you should look for relevant clauses ("death of the user" or similar) and make sure that your relatives do not inherit un­nec­es­sary debts if you die. If in doubt, switch to providers who have flexible ter­mi­na­tion pro­vi­sions.

From a legal point of view, your digital property will go to your main heirs unless you say otherwise in your will. However, it is then up to the principal heir to decide how to proceed with the entire digital legacy. For this reason, it is advisable to specify an ap­pro­pri­ate estate reg­u­la­tion in the will or in the power of attorney. It often makes sense to pass on the digital in­her­i­tance to different people so that they can share the work. It’s important that you don’t list usernames and password in your will, since this document becomes public after you die.

At the moment, there is no federal law that states what happens to a person’s online data after their death or who is re­spon­si­ble for managing their digital legacy. The average American has a lot of digital property and if nothing is done with it in the event of a death, it makes it more vul­ner­a­ble to identity thieves and hackers. Around 2.5 million deceased in­di­vid­u­als are targeted each year.

Since there is no law, it’s usually up to the par­tic­u­lar service (e.g. Facebook, Twitter, etc.) to decide what to do with the person’s digital estate. There is however the Fiduciary Access to Digital Assets Act, which comes the closest to being federal leg­is­la­tion. The act allows executors, trustees, or whomever the deceased person has appointed, to have full access to their assets.

Some states, however, have their own laws that regulate digital estate, so it’s worth checking if your state has one. For example, in Idaho there’s the SB 1044 law which dictates that executors may access e-mail accounts, social networks, blogs, and short messages (e.g. text messages) unless a will or court states otherwise. States that do not regulate digital assets include Texas, Kansas, Iowa, and Florida, among others.

Since the role of a digital executor is quite a new field of law, it makes sense for you to research to find out which websites might need proof of death or might not let anyone but yourself access even with your per­mis­sion. Maybe you and your executor need to live in the same state? If you’re unsure, it’s best to consult an estate planning attorney who can advise you on your digital estate.

It makes sense to first regulate digital in­her­i­tance for the most fre­quent­ly used platforms and services. Once you have an overview, you should pri­or­i­tize the accounts and services that have money flowing through them; those which are paid through sub­scrip­tions, or on which money is stored digitally. Then it is advisable to take care of the most used social networks. Below we explain how some of the best-known internet service providers deal with the deaths of their users and what you should bear in mind if you are an heir to the digital estate on one of these platforms.

Facebook answers the question of what happens to a user's profile after their death in their Help Center. The network offers the pos­si­bil­i­ty to convert the profile page of a deceased person into a memorial page. Facebook asks in this case to be contacted directly by relatives. You can also use a contact form to request your account be deleted. Facebook expressly points out that login data will not be provided because this violates the network’s guide­lines.

Memorial pages place "Re­mem­ber­ing" before the name of the deceased. The privacy settings determine whether others can still post on this profile page and whether content can be shared. Memorial pages no longer appear as friend sug­ges­tions. It is also no longer possible to log in to this account unless there is a legacy contact. In addition to the memorial pages, Facebook rec­om­mends that you create a group to share grief and invite relevant people.

If you want your Facebook account to be deleted after your death, you can decide that yourself. Simply go to "Settings," then to "General" and then to "Manage account." Under the item "Request account deletion" you can then clarify what should happen.

In its general in­her­i­tance reg­u­la­tions, Twitter asks you to contact the provider directly in case of death. Using the contact form for privacy policy you can – a little la­bo­ri­ous­ly – initiate the deletion process, which can take up to six months. With Twitter it usual to announce the death with a final tweet. However, this requires login data, which Twitter does not simply reveal. Memorial pages like Facebook are not offered on Twitter.

As part of the Facebook concern, In­sta­gram's digital in­her­i­tance is similar to that of its parent company. In the Help Center, there are contact forms to either “memo­ri­al­ize” an Instagram profile or have it com­plete­ly deleted. Instagram needs proof that the account owner is actually deceased and does not reveal the login data under any cir­cum­stances.

An Instagram account in a state of re­mem­brance can no longer be accessed. Visually, com­mem­o­ra­tive accounts do not differ from con­ven­tion­al accounts, but they no longer appear “public” e.g. in the “Discover” function. All photos and comments remain for the community and remain in­ter­ac­tive.

With PayPal, you can only cancel the account. This is because PayPal accounts are not classic bank or giro accounts and do not support regular direct debit au­tho­riza­tions and standing orders. Nev­er­the­less, PayPal credit belongs to the monetary pos­ses­sion of the deceased and thus to the digital in­her­i­tance. If you know the de­ceased's login data and have logged into the account, you can contact PayPal and identify yourself as an au­tho­rized heir. PayPal will then require the necessary documents as proof before con­tin­u­ing to terminate the account. You should of course transfer the funds to another account first.

PayPal operates a service hotline for more com­pli­cat­ed cases, for example if the login data of the deceased is unknown: 00 1 402-935-2050. In addition, it should be noted that PayPal is often crit­i­cized for data retention. So don’t expect all data of the deceased to au­to­mat­i­cal­ly disappear from PayPal's databases after the account is ter­mi­nat­ed.

Google Accounts combine many services, such as YouTube and Google Mail. Google de­ter­mines the accounts of deceased people to be “inactive” until further action is taken. You can use the Inactive Account Manager to determine what should happen to the account after you die. If you want to cancel the account of a deceased relative, Google offers a special contact form. It is decided on a case-by-case basis which access rights are granted to the heirs. Google refuses to reveal login data, if this is unknown to the heirs.

According to a ruling by the European Court of Justice (ECJ), Bitcoin and other crypto-cur­ren­cies have of­fi­cial­ly been exempt from value-added tax since 2015. For the digital estate, however, this does not mean that in­her­it­ing crypto cur­ren­cies is regulated. The tendency is that the accounts as­so­ci­at­ed with the digital in­her­i­tance are handed over to the principal heir or the person decreed in the will together with the digital in­her­i­tance. The bottom line is that whoever has the login data also has access to the assets. But not every user has the relative know-how to be able to deal with Bitcoin con­sci­en­tious­ly and ef­fec­tive­ly.

If you have Bitcoins or other crypto cur­ren­cies, it is strongly rec­om­mend­ed that you take care of the estate yourself and at least explain the subject to a dedicated main heir. Because the exchange rates of these cur­ren­cies fluctuate wildly, it’s very important to be knowl­edge­able in this area. It also makes sense to store and encrypt the wallet.dat file on one or more secure data carriers. The easiest way is to use special wallet services to inherit the access data for these services. This is the easiest way for your heirs to manage your estate.