December 21, 2017 Articles

Who Has Access to Decedents' Electronic Assets and Social Media?

What happens to online assets and properties after we die? The answer is more complicated than you might expect.

By Michael L. Fox

“Of all our possessions, wisdom alone is immortal.”
—Isocrates, Greek rhetorician (436–338 B.C.)

Would Isocrates have revised his statement in the present day if he knew about social media and online electronic accounts? It is a fair question to ask considering that social media, electronic communications, and electronic financial accounts have the capacity to live on eternally as part of what has been called the “vast cosmos of the Internet.” United States v. Mayo, No. 2:13-CR-48, 2013 WL 5945802, at *8 (D. Vt. Nov. 3, 2013) (citing Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence, 50 Santa Clara L. Rev. 183, 211 (2010)). We know the adage that nothing is ever truly deleted from the Internet. In fact, type that exact phrase into Google and see how many out there have uttered (written) it and repeated it on the Internet.

This immortal existence on the Internet leads to a concern that is the subject of this article: What happens to those assets and properties after we die? Who has access to them? Who owns them? You might say the executor of the estate. Or the personal representative(s). Or the heirs. Not so fast! The answer is more complicated than you might expect—and requires specific attention, planning, and parsing of statutes and legal rules.

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