Dealing with death in the digital age

Herb Weisbaum • Profile • E-mail

Thirty years ago, when my father passed away, my brother and I knew just where to look for all of his financial papers. Some were in his top desk drawer. The rest were in the family safe deposit box.

Death in the digital age is much more complicated. Many of our most important assets are stored online and locked up with a user name and password. Others are right there on our computer, but encrypted and password protected.

“I have lots of clients thinking about these issues,” says Patricia Char, an attorney with K&L Gates in Seattle.

Char tells her clients they must consider which family members or advisors they want to have access to their digital life when they die or if they become incapacitated.

“Who owns their online photos? Who do they want accessing their e-mail account? What about the content downloaded on their cell phone?”

Digital property can live on long after your death. It can also be destroyed before anyone realizes it.

“It’s a double-edged sword,” notes James Lamm, an attorney with Gray Plant Mooty in Minneapolis.

Some people want their social media pages shut down at their death. Others want them to continue as a memorial after they’re gone.

“In either case, you must do the proper advance planning or it can be extremely difficult, if not impossible, to carry out your wishes,” Lamm says.

A soldier’s story
Lance Corporal Justin Ellsworth, a combat engineer with the Marine Corps, died in Iraq in November 2004, during the invasion of Fallujah.

During his deployment, Justin and his father were in constant e-mail contact. John Ellsworth, a police officer in the Detroit area, knew his son had saved messages of encouragement and support on his Yahoo account.

Mr. Ellsworth wanted those messages, but he couldn’t access his son’s account. Justin had changed his password a few weeks before his death and had forgotten to share it with his dad.

Ellsworth was locked out and Yahoo said it was legally prohibited from giving him access.

Digital audit Here are just some of the various types of digital assets you may have which are encrypted or password-protected: * Blogs * Cell phone account * Digital photo or music archives * Discs or external drives * E-mail * Financial accounts * Online business accounts * Social accounts * Web sites or domains You need to choose one or more people (your lawyer, executor, heirs or trusted advisor) who knows these exist and how to access them if you die or are incapacitated. “Good advance planning always makes it easier and less expensive to deal with a death,” says Minneapolis attorney James Lamm.

“I was very frustrated. I wanted to read the words my son had written and received,” Ellsworth says.

Even worse, Yahoo said the inactive account would be deleted in 90 days.

Ellsworth hired Brian Dailey, an attorney in Royal Oak, Mich., sued and eventually got copies of his son’s e-mails. Ellsworth tells me it was a “very stressful five months” not knowing what would happen.

Dailey says he’s handled many similar cases. They can cost thousands of dollars to litigate.

Both the heartache and expense could be avoided, he says, with some simple estate planning that spells out what happens to the content of e-mail accounts at death.

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