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Bulletin

Estate Planning And Online Accounts

Fasken
Reading Time 17 minute read
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Estate Planning Bulletin

In the 21st century, most people have some sort of online presence, whether it is public (often through the use of social media accounts) or private (often through the use of personal email accounts). In fact, there are many people who consider their online identity to be an integral part of their life. As a result of the technology that supports it, one's online presence often exists, at least in some capacity, beyond their death.

Thus, it is important for one to determine what should happen to their online account(s) after their death. It may be one's wish to have their online identity deleted after their passing, or it may be the case—subject to whether or not the platform allows for it—that they prefer for an account to live on as a way for friends and family to reminisce.

Making these decisions in advance can help one relieve the executors of their estate of the stress and emotional hardship associated with managing the presence that they had in the digital world, so that instead, the executors can focus on managing the presence that they had in the real world. However, such decisions are largely dependent on the scheme that each website has established for dealing with a deceased user's account.

The purpose of this bulletin is to consolidate the post-death account management practices of a variety of popular websites. This bulletin is meant to be a general guide to give users a sense of how they can instruct their friends and relatives (and in some cases, the websites themselves) on how to manage their online accounts after their death.

A Word of Caution on Sharing Passwords

One may believe that an effective strategy for post-death online account management is to share their online account passwords with the executors of their estate to be managed accordingly. For several reasons, this is not necessarily a prudent idea.

It seems that the terms of use for the majority of popular websites forbid a user from sharing their password. It is unclear what claims or remedies a website may have against a user who has shared their password (or such user's estate), and thus the risk associated with contravening a given website's terms of use depends on the specific website and facts involved. As it is generally best for one to avoid violating an agreement if they do not know the full extent of the consequences of doing so, one should seek legal advice before taking a course of action that they believe will violate a website's terms of use.

Besides the legal consideration described above, there are practical considerations that should cause one to think twice about creating a password list. First, one may have to unexpectedly change a password. This might occur because of a forgotten password, or it might occur because the website that they are using mandates its users to change their passwords after the expiry of a pre-determined period (such as every six months). In each of these instances, one will have to be diligent in updating a master password list; this is something that one could easily neglect to do and such neglect would reduce the intended usefulness of the list. Perhaps more importantly, sharing passwords, whether through a physical (or digital) list or simply by telling others, can make them more susceptible to privacy and security threats through misuse or interception by a third party.

In contrast, the majority of the below strategies for post-death online account management do not require the user's password. In a world where the corporations that operate these websites are becoming increasingly susceptible to criticisms with respect to privacy, at least some of them have developed relatively straightforward, password-free ways to manage deceased users' accounts.

Facebook

Memorialization

Once a Facebook user passes away, that user's friends or relatives can send a request to Facebook to have it memorialize their account. In order to make a memorialization request, a requesting party should have some documentation of the user's death, such as an obituary or a death certificate. A memorialized account has multiple unique features:

  • the word "Remembering" will be shown next to the user's name on their profile;
  • depending on the privacy settings of the account, friends can share posts and memories on the profile's timeline;
  • content that the user has shared (photos, posts) stays on Facebook and is visible to the audience with whom the user shared it;
  • the profile will not show up in public spaces such as suggestions for People You May Know, ads, or birthday reminders; and
  • no one can log into the account.

Legacy Contact

A legacy contact is someone whom a Facebook user can designate to manage their memorialized account after they die. Legacy contacts can do the following things to a memorialized account:

  • write a pinned post on it viewable by all of the account's friends (ideally for providing information about a memorial service);
  • establish who can view and post tributes to the profile;
  • change who can see posts in which it is tagged, as well as remove such tags;
  • respond to new friend requests (such as old friends or relatives who were not yet on Facebook);
  • update the profile picture and cover photo;
  • request its removal; and
  • download a copy of what it has shared on Facebook.

With respect to a memorialized account, legacy contacts cannot:

  • log into the account;
  • remove or change past posts, photos, and other things shared on its timeline;
  • read its inbox messages;
  • remove any of its friends; or
  • make new friend requests.

A Facebook user who wishes to designate a legacy contact should arrange for one through their account settings, as memorialized accounts that do not have a designated legacy contact cannot be modified. A user can also change or remove their legacy contacts while they are alive, but a legacy contact cannot be added to an account after it is memorialized as only the user is allowed to log in to the account and change their legacy contact settings. Note that a user may only designate a Facebook friend as a legacy contact; thus, one must have a Facebook account in order to be designated as a legacy contact.

Once Facebook memorializes an account, the legacy contact will automatically be able to manage that account.

Removal

Facebook allows a user to elect to have their account deleted should they pass away. The deletion would take place upon the memorialization of the account, or, in other words, once a friend or relative notifies Facebook that the user has died. Facebook also provides a "Special Request for Medically Incapacitated or Deceased Person's Account" form for a friend or relative to request the deletion of the account of a deceased user that did not make a deletion election. As with memorialization, these requests require some sort of documentation of the user's death. It is also worth noting that one may use this form to request the removal of an account for a "medically incapacitated" user, and such a request requires proof of guardianship and an official document from a doctor or medical facility outlining the user's condition.

Additionally, for memorialized accounts, if the deceased user is the sole admin of a page on Facebook, Facebook will remove the page upon the receipt of a valid request through the "Special Request for Medically Incapacitated or Deceased Person's Account" form. Again, for such a request, it seems that Facebook does require some form of valid documentation that a user is deceased.

Other Options

Friends and relatives of a deceased user can create an additional place for their Facebook friends to share memories of the deceased user through a group. They can also submit general inquiries to Facebook about a deceased user's account through the "Special Request for Medically Incapacitated or Deceased Person's Account" form.

Instagram

Memorialization

A deceased Instagram user's friend or relative can report their account to Instagram to be memorialized. A memorialized account on Instagram has the following features:

  • its profile does not appear differently from an account that has not been memorialized;
  • it cannot be changed in any way (including changes to likes, followers, posts, tags, comments, and privacy settings);
  • its posts stay on Instagram and are visible to the audience with whom the user shared them;
  • it does not appear in public spaces, such as Instagram's "Explore" section; and
  • no one can log in to it.

Additionally, Instagram states that it tries to "prevent references to memorialized accounts from appearing on Instagram in ways that may be upsetting to the person's friends and family" as well as "take measures to protect the privacy of the deceased person by securing the account".

Removal

A deceased user's immediate family members may request the removal of their account from Instagram through an online form. Instagram requires proof from those submitting a request that they are an immediate family member of a deceased Instagram user (such as that user's birth certificate or death certificate), or proof of authority that they are the lawful representative of that user or their estate.

Twitter

Removal

With respect to a deceased Twitter user's account, Twitter will work with a person authorized to act on behalf of that user's estate or with their verified immediate family member to have an account deactivated. After one submits a request through Twitter's Privacy Form, Twitter will send an email to the requesting party asking for further details, including information about the deceased, a copy of the requesting party's identification, and a copy of the deceased's death certificate. Twitter states that this information will remain confidential and will be removed once it has reviewed said information.

Other things to note include the fact that Twitter allows for the removal of an account of a user who is "incapacitated, due to medical or other reasons". Lastly, like most other social media websites, Twitter does not provide anyone with access to the deceased user's account due to privacy reasons.

LinkedIn

Removal

LinkedIn provides a form for anyone who wishes to request the removal of a deceased LinkedIn user's profile. To process the request, LinkedIn requires some information about the deceased user, the requesting party's relationship to the deceased user, and an obituary for the deceased user.

Snapchat

Removal

Snapchat provides limited information on how it will handle a deceased user's account, but it does state that it can delete said user's account if it is provided with a death certificate. A friend or relative wishing to request such a deletion can do so through Snapchat's "Contact Us" page. Again, like other social media accounts, Snapchat will not allow anyone to log in to the account for privacy reasons.

Pinterest

Removal

Pinterest provides family members of a deceased Pinterest user with the ability to request to have the deceased user's account deactivated. Requesting family members can do this through Pinterest's general "Contact" form. Pinterest states that it will not give out any personal or login information about the account.

Google Account (Gmail, Google+, AdSense, YouTube)

Inactive Account Manager

Google provides a tool for users to auto-delete their Google accounts. Using Google's Inactive Account Manager, a user can select a time period for when Google should consider their account to be inactive. Google will delete the account three months after it becomes inactive. Users who delete their accounts using this method will be unable to reuse their Gmail username. Note that a user can opt to receive email reminders that the Inactive Account Manager is turned on during the period of inactivity. To determine inactivity, Google analyzes a user's sign-ins, recent activity, usage of Gmail, and Android check-ins.

It is important to note that a user does not have to designate their account to be deleted after Google deems it inactive; the Inactive Account Manager can simply be used to notify others that the account is inactive. The Inactive Account Manager allows users to select up to 10 trusted contacts whom Google will notify should their account become inactive. These contacts can download some or all of the user's Google data (depending on the permissions that the user grants).

Lastly, note that a user can enable access to the Inactive Account Manager through an Android device under "Settings > Google > Google Account > Data & personalization > Make a plan for your account".

Removal

A deceased Google user's immediate family members or representatives can submit a request to close their account, request funds from their account, or obtain data from their account. In order to submit a request, the requesting party must upload a scan of both their government-issued identification and the deceased user's death certificate.

YouTube

Non-Google Accounts - Removal

Note that many YouTube accounts are associated with Google accounts; thus, one can manage such YouTube accounts through the Inactive Account Manager (described above).

While a user of a YouTube account that is not associated with a Google account cannot use the Inactive Account Manager, such an account can be removed in the same way that any Google account of a deceased Google user can be removed. Immediate family members or legal representatives of a deceased user's account can submit a request to close the account, for funds from the account, or to obtain data from the account. In order to submit a request, the requesting party must upload a scan of their government-issued identification and of the deceased user's death certificate.

Special Issues Concerning Monetized Accounts

The YouTube Partner Program allows YouTube users to earn advertising revenue from their videos. The publically available information for YouTube's monetization policies does not appear to contain any commentary on what happens to a monetized account after the user dies. Note that in order for a YouTube user to monetize their account, they do have to agree to the "YouTube Partner Program terms". While the actual terms are no longer publically available, our previous research on this topic indicates that when they were publically available they gave YouTube the power to terminate the monetization of an account "for convenience with 30 days prior written notice". Additionally, the publically available terms did not address account transferability (although YouTube's general Terms of Service forbid a user from transferring or assigning their account), nor did they mention anything else about what happens in the event of the death of the user of the monetized account.

It is unknown whether YouTube typically ends monetization arrangements for monetized account users upon learning about their death, or if YouTube simply pays any continuing revenue to the user's estate. Thus, a YouTube Partner Program user should specify in their will what is to be done with their account, and personal representatives for that user should, upon the death of the user, communicate with YouTube accordingly.

Twitch

Non-Monetized Accounts

Twitch provides no information about what happens to a deceased user's account, nor does it provide any information on how a deceased user's friends or relatives can remove their account. Twitch does have an "Email Us" page, but this page does not provide any support options with respect to deceased users.

Special Issues Concerning Monetized Accounts

Twitch has both an "Affiliate" and a "Partner" program for users to earn revenue from their streaming and recorded videos. Twitch does not seem to have any policy documentation on what happens to a user's account under either program after that user dies.

However, the Twitch Affiliate Agreement states that Twitch may terminate monetization "at any time, with or without cause, by giving the other party written notice of termination". The Twitch Affiliate Agreement also prohibits assignment. It is unknown whether Twitch ends a user's Affiliate status upon learning of their death, or if Twitch simply pays any continuing revenue to the user's estate. Thus, as with YouTube Partner Program users, a Twitch Affiliate user should specify in their will what is to be done with their account, and personal representatives for a deceased user should correspond with Twitch and attempt to give effect to the deceased user's wishes.

One additional thing to note is that Twitch does not have its "Partner" agreement online; in fact, it seems that Partners individually negotiate their contracts with Twitch. It is possible that these contracts can be negotiated to account for the death of the user.

Yahoo (including Yahoo Mail, Flickr and Tumblr)

Removal

A personal representative or the executor of the estate of a deceased Yahoo user may request to close that user's account. The requesting party will need to include a letter containing the request and the Yahoo ID of the deceased, a copy of the document appointing the requesting party as the personal representative or executor, and a copy of the death certificate of the deceased user. This application must be physically mailed to Yahoo's Oregon, United States of America office. Yahoo states that any such account and its content are non-transferable. Note that, like other websites, Yahoo cannot provide passwords or allow access to the deceased user's account (this includes content such as email).

iCloud/Apple ID (Apple)

iCloud - Termination

The iCloud agreement contains the following clause:

"Unless otherwise required by law, You agree that your Account is non-transferable and that any rights to your Apple ID or Content within your Account terminate upon your death. Upon receipt of a copy of a death certificate your Account may be terminated and all Content within your Account deleted. Contact iCloud Support at https://support.apple.com/icloud for further assistance".

This passage makes it clear that Apple can terminate a user's iCloud account after their death, and that any such account cannot be transferred. However, it is unclear how the above clause applies when a deceased user's iCloud account is part of a Family Sharing plan (where multiple users can share media, App Store purchases, and storage space). Presumably, Apple would not delete shared content simply because one of the users on the plan has died, but to be safe, or, in the absence of a Family Sharing plan, iCloud users who wish to preserve their iCloud content should back up this content using a separate service or device.

Lastly, note that iCloud does not seem to have any automated process for reporting an iCloud user's death; thus, it seems that a deceased user's friend or relative should inform Apple of the death through its iCloud support website.

Apple ID - Removal/Transfer

The Apple Media Services Terms and Conditions (which address Apple IDs, iTunes and the App Store) do not contain any provisions pertaining to the death of an Apple ID user. Additionally, there is no Apple policy documentation on this topic, nor is there a standard form for situations where an Apple ID user dies. However, Apple support sources indicate that family members of a deceased accountholder should contact Apple Support and explain the circumstances (and have a death certificate ready to present to Apple).

That being said, it is unclear if Apple will simply remove the Apple ID or allow a relative of its deceased user to access the Apple ID. In 2016, Apple required a British Columbia widow, who wanted to play iPad games purchased through her deceased husband's Apple ID, to get a court order in order to access the Apple ID. After pressure from the media, Apple withdrew the court order requirement and assisted the widow (although it is unclear what specific actions Apple took). A CBC article also confirmed that Apple would not comment on what its official policy is for customers trying to retrieve the passwords and digital information of relatives of users who have died.

Therefore, if a user has funds or content associated with their Apple ID (whether through applications, games, or App Store credits), it is prudent for that user to make clear provisions in their will on how their executors and trustees should manage those assets. Alternatively, as mentioned above, an Apple ID user may wish to use Apple's Family Sharing service to ensure that Apple ID funds and content are available, in the event of their death, to their family members.

Microsoft (Outlook, Hotmail, OneDrive, Skype)

Removal

Microsoft is unique in the way that it handles post-death account management. First, it does not seem to offer a process for friends or relatives of a deceased user to have their account closed. Microsoft states that it is "unable to provide any information about any accounts in question", but also that friends and relatives "don't need to contact" them to let them know that someone has died or has become incapacitated.

Interestingly, Microsoft in this instance seems to condone the sharing of passwords. On its help page for this topic, Microsoft states that if a friend or relative knows the account credentials of the deceased user, they can close the account themselves (in the same way that the deceased user would be able to do so if they were alive). Thus, it seems that Microsoft does not expressly forbid password-sharing. The Microsoft Services Agreement supports this inference, as on this topic it merely states that "[t]o protect your account, keep your account details and password confidential. You are responsible for all activity that occurs under your Microsoft account"; this language does not seem to expressly forbid sharing a Microsoft account password.

As sharing passwords is not always a reliable practice, it is important to note that Microsoft provides options for when a friend or relative does not have a deceased user's password. One option is to simply wait for the account to "expire", as the Microsoft Services Agreement indicates that Microsoft will close an account within a period of inactivity (specifically, when a user does not sign in to said account), such period depending on the type of account:

  • two years for general Microsoft accounts;
  • one year for Outlook and OneDrive accounts; and
  • five years for Xbox Services accounts.

Microsoft also suggests that, with respect to cancelling paid subscriptions associated with a Microsoft account, the deceased user's representative should either close or revoke the relevant authorization of the user's corresponding bank account or credit card.

Microsoft goes as far as to expressly state that it must be formally served with a valid subpoena or court order to consider whether it is able to lawfully release information with respect to a deceased or incapacitated user's Microsoft account. Thus, in the event that it is necessary to access certain things on a deceased user's Microsoft account that the user has not backed up on a separate device or service (like important emails), it may be best to seek legal advice.

Final Thoughts

It seems that most popular online websites will, should they receive proof that a user is deceased, at least agree to close a user's account. However, it is always advisable for one to make their wishes for what should happen to their online presence clear in their will. For guidance on how to navigate this developing area of estate planning, please feel free to speak to one of our estate planning lawyers.

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