Note on Digital Estate Planning Services
The internet is now a major part of American life, but what role will it play in death? As people spend more time online, many are wondering what will happen to their online presence when they are gone. Some internet users have already thought about that question, and software developers have begun building online services catering to their post-mortem needs.
This Note focuses on one of the most promising and potentially problematic uses of “Digital Estate Planning” (DEP) services: transferring online account login credentials to another upon death. The promise and potential danger rests in the compelling way DEP services solve the “digital asset dilemma” faced by all users of online services: the need to pass the contents of online accounts to heirs when such accounts are accessible only with usernames and passwords that often remain private during one’s lifetime. Although it is unclear whether online accounts are legally inheritable, individual online service policies and a few recent statutes seem to indicate that survivors have, at a minimum, an inheritable interest in the contents of an online account. However, the transfer of a decedent’s private account login information to a successor, through a DEP service or otherwise, grants the recipient full use of the account, not just access to the information contained within. Individuals may use a DEP service to solve the digital asset dilemma, but some may incorrectly conclude that they are legally transferring the account itself. In addition, people may mistakenly believe that they can use DEP services to legally transfer property of all types, when in fact, the legality of any attempted DEP service transfer is far from certain.
In the likely event of a lawsuit stemming from the use of a DEP service to attempt a transfer of property, it would be difficult for a court to validate the transfer. This Note explores the manner in which a court seeking to validate such a transfer might stretch existing law to do so, but argues that the digital asset dilemma is best solved through comprehensive legislation. In addition, this Note discusses the merits and potential pitfalls of making digital assets a distinct nonprobate category, and suggests a more useful role for DEP services as facilitators of such transfers, or as providers of legally recognized online wills.