What happens to your email address after you die? How do you access or close a deceased person’s Facebook account? Is the answer different if the person is alive, but incapacitated?  

A person’s digital assets, online accounts, internet profiles and electronic communications — their “digital legacy” — can be extremely personal and sometimes valuable.  Account privacy and security are major considerations and obstacles to gaining access.  Business accounts will likely be the sole property of the business, even when used for personal reasons.  The service provider’s terms of service may provide that posted content is not actually owned by the individual, but by the platform.  This might include photographs, opinions and other statements originally created by the account owner.  Some providers allow a user to appoint a trusted person who shall have limited access to the account after death or an extended period of inactivity.  You cannot legally log-on to those accounts, even when you have access to user names and passwords.  

New York Estates, Powers, and Trusts Law provides a process on how an appropriate person may become authorized to receive access to digital assets and electronic communications.

Where the account owner is deceased, Court authorization is available to the Court-confirmed Executor, Administrator or Personal Representative, although the Court will first look at the Will for limitations, i.e., to allow access to only specific accounts, or photographs, but not personal conversations.  Once authorized, as documented with a Court certificate, access to personal accounts is mandated. In the case where there are no other assets requiring Court intervention, it will still be necessary to go to Court to become authorized and to receive that certificate.  

Where the account owner is alive, but incapacitated, it will be necessary to provide a properly signed Power of Attorney document that specifically grants authority over i) the content of electronic communications sent or received and ii) digital assets, or a general authority to act with regard to a catalogue of electronic communications and/or digital assets.  In other words, the Power of Attorney document must have the requisite specific authority written in.  The basic New York Power of Attorney form will not grant that authority to the agent. 

If you want account access to download information or for accounts to be disabled, you will likely have to contact each digital service company separately.  Start by creating a list of all known digital assets or accounts.  In most cases, information regarding account termination can only be found by reading the “Terms and Conditions” of each individual service, which are subject to change at any time.  It is unlikely that you will be able to transfer digital account ownership to another person.  Although this process is tedious, I would suggest that it is a “best practice”, if for no reason other than to safeguard a person’s privacy.

Law Office of Kathleen M Toombs PLLC

157 Barrett Street, Schenectady, NY

(518) 688-2846

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